Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F5724
DAVIS, J.
A jury convicted defendant Bryon Keith Ames of corporal injury of a spouse with a personal use of a deadly weapon enhancement (Pen. Code, §§ 273.5, subd. (a), 12022, subd. (b)(1)) and making a criminal threat (Pen. Code, § 422). Defendant admitted three prior prison terms and the court dismissed the criminal threat conviction on the People’s motion. The trial court stayed the punishment as to two of the prior prison term allegations and sentenced defendant to four years in state prison.
On appeal, defendant contends (1) the court should have granted his new trial motion on the ground of ineffective assistance of counsel, and (2) the reasonable doubt instruction (CALCRIM No. 220) and the flight instruction (CALCRIM No. 372) violate due process. We shall affirm.
Background
On August 9, 2005, Robbie H. was driving on the dirt road from her home when she saw one person beating up another person. She was about 200 yards from the two when she first spotted them; they were next to a car. Traveling about five miles an hour, she approached to within 15 feet of the car. She witnessed a man standing over a woman and beating her while she was on the ground. Robbie H. eventually recognized the pair as defendant and his wife, Lennia T.
We will use the first names of certain witnesses to protect their privacy.
Robbie observed the incident for about five minutes. She saw defendant hitting Lennia with a dark black object that looked like a long stick. Defendant hit Lennia about 15 times and was swinging “very hard.”
Robbie honked her horn and then put her car in reverse and drove to the home of her neighbor, Kathy C., where one of the women called 911. While Robbie was backing up, defendant got in his car and drove away.
Robbie left Kathy’s house and returned to Lennia. By this time, Lennia was standing, delirious and bleeding. As Robbie helped Lennia to Kathy’s house, Lennia said, “‘He was trying to kill me.’” Robbie wrapped Lennia’s head in a sheet and held her head until the paramedics arrived.
Robbie recalled an incident about a week earlier in which defendant and Lennia had been arguing at Lennia’s parents’ house. Lennia said something about Robbie, who laughed, which caused defendant to come at Robbie. Lennia got between the two and defendant grabbed her by the neck and hit her.
Kathy testified that, on the day of the incident, she answered her door and found Robbie and Lennia. Lennia had blood all over her head and Robbie said they needed to call 911. Kathy asked Lennia what had happened, and she replied, “‘He tried to kill me.’”
Kathy went outside her house and saw a red car with a broken rear window pull into her driveway. Lennia identified the car as defendant’s and Kathy called 911 again. The car stopped “midway through the driveway” and then drove away.
Lennia’s mother, Ruth T., recalled two messages left by defendant on her voice mail in August. In the first, defendant told Ruth that he had gotten into a fight with Lennia after taking her to “her little boyfriend’s house” in Gotcha Creek to get some crank. In the other message, defendant said, “‘Ha, ha. I guess you haven’t heard from Lennia yet.’” “‘I got her good with a rock.’” He then threatened to kill “‘all of you MF’ers.’” When Ruth visited Lennia at the hospital, she saw that Lennia’s head was “split open,” and she expressed her fear of defendant.
Shasta County Sheriff’s Deputy Steve Curtiss responded to the scene. He found Lennia covered in blood from “head to toe. It was all over her shoulders, running down her body. Her head was covered in it.” Although Lennia was hysterical, she told Deputy Curtiss, “‘He tried to kill me. He’s going to kill me.’”
The deputy found a broken quart-sized Budweiser bottle on the road near some skid marks in the dirt. At the hospital, he took photographs of Lennia’s injuries, which were admitted into evidence.
Lennia testified as a defense witness. She testified that she had drunk a lot of beer on the day of the incident and that she was “drunk that day.”
Lennia wanted to visit Kathy. Defendant did not want Lennia to go there because Kathy uses drugs. Lennia got out of the car before they reached Kathy’s house and the two started arguing. Lennia believed they started to throw rocks at each other. The next thing Lennia remembered was winding up on the ground bleeding. She thought she had probably fallen. She went to Kathy’s house, but she did not know where defendant was at that time because she “was like out of it.” Lennia recalled that she was bleeding and that Robbie put a towel around her head.
Lennia did not remember telling anyone at the scene that defendant had tried to kill her. Lennia admitted telling the judge that she wanted to help defendant and telling an investigator that defendant had written her letters and had apologized for hurting her. She was not afraid of defendant, her husband of 18 years, and denied ever saying she was afraid of him.
Barry Williams, who had known defendant for a few years, was driving to see a friend on the day of the incident. As he drove, Williams spotted defendant and Lennia arguing. Defendant was in the driver’s seat and Lennia was outside of the car on the passenger side. According to Williams, Lennia broke the rear and front windows of defendant’s car by throwing rocks. Defendant drove off and then turned the car around and got out. Once defendant left the car, Lennia started to beat him with a stick. Defendant took the stick from Lennia, “pushed her a little bit,” and threw the stick away. Lennia fell down, and defendant leaned over to check on her. Defendant then got into his car and drove away, and Lennia walked to her friend’s house. Lennia was screaming and appeared to be drunk, but he did not see any blood on her and she appeared to be uninjured.
Williams first talked to an investigator about the incident in March 2006, one month before the trial. He was in jail and his cell was just a couple of pods away from defendant’s.
Defendant testified. He stated that his wife drinks “pretty much every day” and about once a week “she just has to take off and drink a lot.” Lennia is “real nice” when she takes her medication, but her mind races and she gets out of control when she does not.
On the day of the incident, he and Lennia went to her mother’s house to get some computers. They then went to the park with Lennia’s niece and her son. After they left the park, they went to the home of Lennia’s brother and sister-in-law, Eddie and Sarah, in Happy Valley. Defendant did not like to take Lennia to their house because Eddie and Sarah sell a lot of methamphetamine and were “always slipping [methamphetamine] to [Lennia].”
Eddie was not there, so they stayed to wait for him. Lennia and Sarah were in the house. Defendant came in the house and “caught” Lennia drinking whiskey with Sarah. Defendant did not approve of Lennia drinking whiskey because she could not “handle anything over a few beers.” Defendant told Lennia he was leaving because of her drinking, and Lennia “dove” on the car and tried to break the windows.
Defendant told Lennia to calm down. They then drove to Lennia’s mother’s house. Eddie met them there--he punched Lennia in the head three times, knocked her down, and kicked her because she had told Sarah about Eddie’s girlfriend. Defendant and Lennia then headed home, but Lennia wanted to stop at Kathy’s house to buy methamphetamine. After defendant refused to give Lennia $20 to buy methamphetamine from Kathy, Lennia kicked the door open, grabbed his thumb, and start screaming for the money.
Defendant stopped the car. Lennia got out, went to the front of the vehicle, and again asked for $20. Defendant told her he would leave if she went to Kathy’s. Lennia became angry and started to throw rocks at the car. The first two rocks damaged the front window, causing defendant to pull the car forward. After defendant pulled the car forward, Lennia threw rocks at the rear window and broke it.
Defendant backed up and got out of his car after his rear window was broken. As he got out, defendant took a 40-ounce beer bottle of Lennia’s from the car and broke it on the roadway. Lennia started to throw rocks at him, so defendant threw rocks back at her. She then picked up a three-foot-long stick and attacked defendant, injuring his arms, finger, thumb, and forehead.
Defendant took the stick from Lennia and pushed her back. She fell on the ground and hit her head on a tree. Lennia told defendant she was bleeding, so he got a rag from the trunk for her. She still wanted to go to Kathy’s, but after defendant said no again, Lennia started swinging at him. She eventually calmed down and apologized, but would not go with defendant, who left.
Defendant, who is 5 feet 10 inches tall and weighs 345 pounds, said it was not easy to overpower Lennia and take the stick from her because she had “hit [him] a bunch of times first.” He loves his wife, and admitted sending her a statement for her to sign regarding the incident.
Defendant admitted to prior convictions for aiding and abetting the distribution of methamphetamine and possession of marijuana with intent to sell. He also admitted having slapping his wife a couple of times in the past year.
Defendant claims he received a puncture wound from the assault, which became infected. However, he did not tell the authorities about this or any other injury during the medical screening after his arrest.
On rebuttal, an investigator for the district attorney’s office recalled an interview with Lennia at the Shasta County jail. Lennia said she still loved defendant and did not want to testify. She was afraid to tell the truth out of fear for her life because defendant, although in custody, has ties on the outside. Lennia also told the investigator she had received a letter from defendant in which he apologized for hurting her.
Deputy Curtiss testified on rebuttal that Lennia had described a prior incident in which defendant had pushed her out of a car while it was traveling at approximately 45 miles per hour. As to the August 9 incident, Lennia told the deputy that defendant hit her in the head at least three times with a Budweiser bottle, causing the injuries to her head. She also told the deputy that defendant had said he was going to kill her and her family. When Deputy Curtiss talked to defendant in jail on the day of the incident, he saw no injuries on defendant’s face.
A defense investigator, called by the prosecution, related an interview with Lennia in which she told him that the statements in the police report were accurate, and that defendant had hit her at least three times in the head with a Budweiser bottle.
Robbie, on rebuttal, stated she never saw defendant lean over Lennia to check on her condition. She also did not see any other vehicle besides defendant’s during the incident.
After the verdict but before sentencing, defendant made a Marsden motion, claiming he was entitled to a new trial because counsel was ineffective. After hearing defendant’s claims and trial counsel’s replies, the court appointed substitute counsel to determine if there were grounds for a new trial motion.
People v. Marsden (1970) 2 Cal.3d 118.
The new counsel moved for a new trial, contending trial counsel was ineffective for, among other reasons, failing to investigate and present evidence supporting defendant’s self-defense claim. The court denied the motion.
Discussion
I
Defendant contends the court erred in denying his new trial motion, asserting trial counsel was ineffective for failing to present evidence showing Lennia’s propensity for violence. We disagree.
A
Defendant’s mother, Donna Pappa, testified at the hearing on the new trial motion and described several incidents that showed Lennia’s propensity for violence. At a Fourth of July barbecue, defendant’s niece started to thank defendant for the invitation and Lennia came “out from around the side of the house and lunged at her and told her to get away from him[, saying] [t]hat’s my man.” Once, when driving home from dinner at a restaurant, Lennia started “smacking” defendant in the face and arguing with him. As Lennia got out of the car she started cussing and yelling at Pappa. Lennia then lunged at Pappa and hit her on the shoulder.
At one time, Pappa was the payee for Lennia’s Social Security check. One month, Pappa showed Lennia the money and told Lennia she was going to pay Lennia’s bills. Lennia grabbed the money from Pappa, hit her on the shoulder, and took off running. On another occasion, Lennia called Pappa to get a ride home. When Pappa declined, stating that she had no gas, Lennia called her a liar and said that she and her brother were going to “come down and take care of [Pappa] and [her] whole family.”
Pappa also testified that she had taken a series of photographs of defendant during the six months preceding the incident that purported to show scratches and bruises resulting from Lennia’s attacks. Pappa testified that she had called defense counsel about five times, and had gone to his office about 25 times. She turned the photographs over to him and informed him that she was available to testify.
Pappa admitted defendant had told her that he had written a “script” of yes or no questions about the case for Lennia and her mother to answer. Pappa did not think that the answers were already included with the questions.
Lennia’s attacks on defendant were never reported to law enforcement, although Pappa did report the restaurant incident to Lennia’s parole officer. She admitted her memory was “[n]ot real good” because of her neck and back injuries.
Defendant’s half brother, Charles Lucas, also described acts of violence by Lennia. He observed these incidents while acting as a driver for Lennia at defendant’s behest. Lucas would willingly drive Lennia to various places so she could obtain drugs.
On one occasion, Lucas drove Lennia to her family residence in Happy Valley to purchase drugs from her sister. Her sister refused because Lennia had no money and Lennia attacked her. On another occasion, Lennia accused her niece of stealing. The two started calling each other names and Lennia “jumped on her.” He also saw Lennia attack her friend Caroline as she was walking away from Lennia during an argument.
Lucas also observed Lennia act violently toward defendant while Lucas was staying with them. He said “[i]t was almost a daily process.”
Lucas claimed he had relayed the incidents to the defense investigator in an interview and had told either defendant’s counsel or counsel’s investigator that he was able to testify at trial. He was on probation for a methamphetamine-related conviction at the time of his testimony and was under the influence of drugs during some of the events described in his testimony. He also admitted to several discrepancies between his testimony at the hearing and his declaration in support of the motion for new trial.
Defendant also testified in support of the motion for new trial. He said his mother took the photographs to protect him in case he ran into legal difficulties after Lennia attacked him. The photographs described a series of incidents that primarily occurred between June and July 2005.
Lennia once attacked defendant in the kitchen for no apparent reason, scratching the back of his neck. In another incident, she attacked defendant as he was watching television, scratching him down the neck as she tried to rip him out of the kitchen chair.
Defendant testified that neither defense counsel nor his investigator took photographs of defendant’s injuries resulting from the August 9 incident. Counsel told defendant he would send an investigator to take the pictures, but the investigator never showed up.
According to defendant, counsel visited him three to five times, and spent no more than a total of one hour and 15 minutes discussing the case with him prior to trial. Defendant wrote many letters to counsel describing his concerns about the case and providing him the names of numerous witnesses.
Defendant sued the district attorney’s office regarding the criminal case; he offered to drop the civil suit if the district attorney dropped the charges against him. He also frequently emphasized to counsel the need to focus on the civil suit.
Defendant admitted he had written statements concerning the case for Lennia and her mother to sign if they agreed with the contents. Counsel had told defendant that the prosecutor would say these statements were an attempt by defendant to influence the witnesses.
Defendant’s trial counsel testified at the hearing. He stated that he had visited defendant at least five times and that each visit lasted about an hour. Counsel read the letters defendant sent him and discussed the issues raised in them, as well as witnesses defendant wanted to have called. He did not have photographs of defendant taken after the incident because neither the medical reports nor any other records indicated defendant had been injured as a result of the fight with Lennia, and he did not notice any injuries to defendant the first time he visited him.
Counsel did not call defendant’s mother to testify because he did not think she was a believable witness. He believed Pappa was so wound up and “vitriolic about the way she talked about [Lennia]” that she would not be able to control herself on the stand. Even though counsel had had frequent contacts with Pappa, he had never seen or heard of the photographs of defendant’s injuries that Pappa had taken.
Pappa was heavily involved in the case with the victim and had kept in touch with her. Counsel was concerned about Pappa’s potential involvement with the damaging admissions that had been sent by defendant to Lennia. He also believed Pappa was “working with” Lennia to sign statements about the case.
Counsel based the defense on the inconsistency between the witnesses’ testimony regarding the severity of the beating and the minor injuries to Lennia described in the hospital reports. He did not feel that the self-defense claim was viable because defendant had an opportunity to leave the scene when he left the car, but he did not.
The court determined that any evidence of self-defense would have been collateral because the issue in this case was not who started the fight. While the evidence regarding Lennia’s prior violence “might have been interesting” and may have given the jury more facts to consider, the court concluded that defendant’s repeated striking of Lennia while she lay defenseless on the ground negated defendant’s self-defense claim. The court thus concluded defendant had not been prejudiced by counsel’s representation.
B
Although not enumerated as one of the statutory grounds for new trial in Penal Code section 1181, a trial court may grant a motion for a new trial on the ground of ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To prevail on this ground, it is the defendant’s burden to demonstrate both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that his counsel’s deficient performance resulted in prejudice to the defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Callahan (2004) 124 Cal.App.4th 198, 212.) “If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
Defendant asserts counsel ineffectively subverted his self-defense claim by not presenting the evidence of Lennia’s propensity for violence. We disagree.
Evidence Code section 1103, subdivision (a), provides that the defense properly may introduce evidence of the character of a victim to prove that the victim acted in conformity with the trait. “Evidence Code section 1103 authorizes the defense in a criminal case to offer evidence of the victim’s character to prove his conduct at the time of the charged crime. Consequently, in a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor. [Citations.]” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447, fns. omitted.)
Counsel’s characterization of defendant’s mother as not credible and a potentially volatile witness who could hurt the defense is supported by the record. Pappa, who had a bad memory, admitted she was involved in the correspondence between defendant and Lennia, which counsel reasonably feared could contain evidence of attempts to tamper with witnesses or admissions of guilt from defendant. Although she claimed to have taken photographs of injuries previously suffered by defendant from attacks by Lennia, counsel had never seen or heard of the photographs. Counsel’s decision not to call this risky witness of potentially dubious benefit was a reasonable tactical choice.
Counsel’s tactical decision with respect to defendant’s half brother Lucas was also reasonable. Lucas admitted he was on drugs during at least several of the incidents he described; he also admitted he was on probation as a result of a prior drug conviction. His statements that he chauffeured Lennia at defendant’s request and willingly drove her places to get drugs could lead the jury to conclude defendant was at least somewhat complicit in her alleged drug use. Trial counsel could reasonably conclude that whatever benefit was gained from Lucas’s description of the victim’s violent tendencies was not sufficiently credible to present to the jury and could tie defendant to Lennia’s alleged drug use.
The court correctly concluded that self-defense was a tangential matter. This was not a case of who started a fight or whether defendant’s use of force was reasonable. Rather, the case involved the credibility of the accounts of the witnesses to the event--Robbie, Lennia, Williams, and defendant.
The jury believed Robbie, whose testimony was supported by Kathy; the deputy’s description of Lennia; and Lennia’s statements to the deputy, to Kathy, and to the defense investigator. If Robbie’s story is credible, defendant had lost any right to self-defense. Since the propensity evidence does not directly attack Robbie’s credibility, it is at best tangential to the case.
This does not make the propensity testimony irrelevant. The propensity evidence would somewhat bolster the credibility of defendant’s story by supporting his claim that Lennia had initiated the violence. However, even if the jury found defendant’s story credible, his self-defense claim was weak. According to defendant’s version of the events, Lennia first threw rocks at the car; she did not begin throwing rocks at defendant until he left the vehicle. Defendant reciprocated by throwing rocks at Lennia. Lennia then attacked defendant with a large stick; defendant disarmed her, and then defendant (who was 5 feet 10 inches tall and weighed 345 pounds) pushed Lennia down, causing her injuries. Trial counsel could reasonably conclude this defense was far from strong, and the propensity evidence would therefore not benefit the defense.
We conclude trial counsel was not ineffective because his decision not to pursue the propensity evidence was a reasonable tactical decision and defendant was not prejudiced by counsel’s failure to further pursue this weak claim.
II
Defendant contends the instruction given on reasonable doubt (CALCRIM No. 220) unconstitutionally lessens the prosecution’s burden of proof. We disagree.
The trial court instructed the jury in the language of CALCRIM No. 220 as follows:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
Defendant contends that the italicized language impermissibly shifted the burden of proof to defendant because “[t]he jury could have only interpreted this [statement] as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense.”
The identical contention was raised and rejected in People v. Hernández Rios (2007) 151 Cal.App.4th 1154. In Hernández Rios, the Court of Appeal noted that CALJIC No. 2.90 contained similar language referring to the “comparison and consideration of all the evidence” (italics omitted), and that the language had been upheld by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17 [127 L.Ed.2d 583]. (People v. Hernández Rios, supra, 151 Cal.App.4th at p. 1157.) The Hernández Rios court concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence, and it rejected defendant’s claim that the instruction shifted the burden of proof. (Ibid.)
We agree. Nothing in this instruction suggests the defense must present evidence or otherwise bears any burden of proof. CALCRIM No. 220 accurately states the law and reminds the jurors that their decision must be based on the evidence presented at trial and not from any other source. Defendant’s claim to the contrary is without merit.
III
Defendant contends that the instruction given on flight (CALCRIM No. 372) is fundamentally flawed and should not have been given. He asserts the instruction presumes defendant is guilty of a crime and lowers the prosecution’s burden of proof. Neither claim has merit.
As given to the jury, CALCRIM No. 372 provided: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
Defendant contends that the phrase “was aware of his guilt” impermissibly presumes the existence of defendant’s guilt.
CALCRIM No. 372 creates a permissive inference of guilt from a defendant’s flight. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” (Francis v. Franklin (1985) 471 U.S. 307, 314-315 [85 L.Ed.2d 344].) Applying this principle, the California Supreme Court, in rejecting a challenge to analogous CALJIC No. 2.52, concluded permitting “a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt” does not violate due process. (People v. Mendoza (2000) 24 Cal.4th 130, 180.)
CALCRIM No. 372 permits a permissive inference to be drawn if the jury determines that defendant fled the scene. It does not presume those facts to exist, nor does it direct a particular conclusion. The inference the jury is permitted to draw from defendant’s flight is supported by reason and common sense. Accordingly, the instruction does not impermissibly presume guilt. (See People v. Hernández Rios, supra, 151 Cal.App.4th at pp. 1157-1159.)
Defendant’s claim that the instruction impermissibly lowers the burden of proof fails for the same reason. Inferring guilt from flight is rational, and allowing the jury to make this inference if it found defendant fled the scene did not lower the prosecution’s burden of proof.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.