Opinion
C085789
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MAL BLACKBURN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE007883)
Appointed counsel for defendant Mal Blackburn has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief wherein he challenges the admission of his prior acts of domestic violence and argues he received ineffective assistance of counsel. We will affirm the judgment.
BACKGROUND
Based on an altercation between he and his then-girlfriend that occurred in March 2016, defendant was charged with inflicting corporal injury resulting in a traumatic condition upon a person with whom he currently has or previously had a dating relationship (Pen. Code, § 273.5, subd. (a); count one), false imprisonment (§ 236; count two), making criminal threats (§ 422; count three), and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count four). With respect to count one, it was further alleged defendant had a prior domestic violence conviction. (§ 273.5, subd. (f)(1).)
Undesignated statutory references are to the Penal Code. --------
The 2016 incident
The evidence presented at defendant's trial established that the victim and defendant were in a dating relationship in 2016. On March 12, 2016, the victim believed that they were in an exclusive relationship and the two went out drinking. They began to argue on the ride home, with the victim accusing defendant of cheating on her. Defendant appeared to be drunk. The victim hit him a few times on the shoulders and chest. Defendant grabbed her arm "kinda hard," causing bruising.
The pair continued to drink at a bar and then at defendant's home. Later that evening, the victim discovered that defendant was indeed involved with another woman; she was "devastated" and took defendant's jacket and keys as she left for her brother's house.
Later that morning, the victim went back to defendant's house to return his things and break up with him. She was angry and still drunk. Defendant was "really upset," and the two began fighting. He pushed her, and she hit him. At one point, defendant grabbed her head, causing it to hit against the wall. She was scared because defendant was stronger than she. During the fight, the victim saw a gun in defendant's pocket. Defendant threatened to shoot her. The victim eventually left. She suffered bruising on her hand and hip due to the fight. The jury was shown photographs of her injuries taken by police after the incident.
Additional statements made by the victim about the incident were related to the jury by a law enforcement witness, the details of which are not relevant here.
Evidence of prior acts of domestic violence
Prior to trial, the People moved to admit nine prior incidents of domestic violence, including five prior convictions for violations of section 273.5, subdivision (a) in 1997, 1998, 2000, 2008, and 2011. (Evid. Code, § 1109.) The 2011 conviction stemmed from a 2010 domestic violence incident involving defendant and the (same) victim. Defense counsel conceded the prosecutor could ask the victim about the 2010 incident but otherwise objected, arguing the evidence was more prejudicial than probative, cumulative, and not recent in time. The court ultimately found only the 2011 and 2008 convictions were admissible, and the parties informed the jury of the convictions by stipulation.
The jury also heard testimony from the victim regarding the 2010 incident. She testified that she and defendant were arguing when defendant suddenly began fighting with her son. The victim tried to intervene and got hit near her eye. She suffered bruising and swelling near her eye and required stitches. At the time, she "blamed" defendant and identified him to police, but she testified at trial that she was now unsure who hit her. The responding sheriff's deputy testified at trial that, the night of the December 2010 incident, the victim never indicated she was hit by anyone other than defendant.
Defense closing argument and judgment
During closing argument, defense counsel argued the jury should find defendant not guilty because the victim was not a credible witness. Counsel described her as "tipsy, fuzzy and angry," arguing she was "extremely drunk" during the incident, unclear as to what happened, and angry enough to lie to police in order to hurt defendant. Counsel also noted the victim's inconsistent statements regarding the incident and lack of physical evidence. Counsel also argued there was no evidence defendant had a gun.
With respect to the evidence regarding defendant's two prior acts of domestic violence, the jury was instructed pursuant to CALCRIM No. 852 as follows: "The People presented evidence the defendant committed domestic violence that was not charged in this case . . . . [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence the defendant in fact committed the uncharged domestic violence. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit [count one (§ 273.5, subd. (a))] or the lesser crime of simple battery on a person with whom he previously had a dating relationship. [¶] If you conclude the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [count one (§ 273.5, subd. (a)) or the lesser included crime of simple battery]. The People must still prove the charge beyond a reasonable doubt. Do not consider this evidence for any other purpose."
The jury found defendant guilty of count one (§ 273.5, subd. (a)) and acquitted him of the remaining counts (involving false imprisonment, threats, and gun possession). The trial court found true the prior domestic violence enhancement with respect to count one. (§ 273.5, subd. (f).)
On October 16, 2017, defendant requested new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. After holding a hearing, the trial court denied defendant's motion. That same day, the court sentenced defendant to state prison for five years. (§ 273.5, subd. (f).) The court imposed various fines and fees and awarded defendant a total of 164 days of custody credit.
Defendant timely appealed.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) In supplemental briefing, defendant challenges the admission of his prior convictions under the double jeopardy clause and further argues that he received ineffective assistance of counsel. We disagree.
Double Jeopardy
Defendant argues that admission of his prior domestic violence convictions violates the double jeopardy clause because he was put on trial again for crimes for which he had already served his sentence. Assuming for the sake of argument that this issue was preserved for appeal, the argument fails. Defendant was not retried on those convictions, nor was he subject to conviction or punishment for the past offenses. (See People v. Visciotti (1992) 2 Cal.4th 1, 71 [rejecting claim of double jeopardy protection against introduction of evidence of past criminal conduct at a sentencing hearing].) For the same reason, defendant's argument that the jury was wrongly instructed that it could convict him (again) of his prior crimes fails. We have described the instruction above; it properly informed the jury of the limits of the priors' consideration. (See People v. Brown (2011) 192 Cal.App.4th 1222, 1233 ["[s]ection 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes' "].)
Although defendant contends that his counsel "never objected to any of this," counsel successfully objected and argued against the admission of defendant's prior domestic violence convictions, keeping the jury from hearing all but two of the nine priors and previous acts of violence offered by the People.
Defendant also argues his counsel was ineffective because counsel failed to move for dismissal when the prosecutor admitted the victim had credibility issues, and that counsel failed to object to the lack of evidence of gun possession. To establish his claim, defendant must show that counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) He must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.)
It is well settled that witness credibility is an issue for the jury (see, e.g., People v. Harris (1989) 47 Cal.3d 1047, 1098 [challenged instructions were "adequate to alert the jury to its obligation to weigh the credibility of these and all witnesses"]), and here defense counsel raised the credibility issue for the jury during closing argument as we have described in detail above. Defense counsel also (successfully) argued to the jury that the evidence was insufficient to support a conviction for being a felon in possession of a firearm. Counsel succeeded in limiting the evidence the jury heard and then argued that the jury should acquit his client for the very reasons defendant now highlights; the jury did just that on three of the four charges. Indeed, counsel was quite effective. Defendant's claims to the contrary fail.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Renner, J.