Opinion
C096421
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID CAPPS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 18FE016564)
ROBIE, Acting P. J.
Defendant David Capps pled guilty to nine counts of lewd and lascivious acts on a child under 14 years old, two of which were by force. A jury later found defendant guilty of several offenses committed against his wife, specifically corporal injury; assault with a deadly weapon, i.e., a knife; and assault with a shotgun. The jury further found that defendant inflicted great bodily injury during the commission of the corporal injury offense. On appeal, defendant argues that insufficient evidence supports the jury's assault with a knife verdict, that the trial court deprived him of a fair trial by requiring jurors to sit outside the jury box, and that his counsel was ineffective for several reasons. We affirm.
Defendant's name appears several different ways throughout the record. While the notice of appeal and the parties' briefs use "David Leroy Capps, Jr.," the abstract of judgment uses "David Capps." We use the latter name for consistency.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with nine counts of lewd and lascivious acts, two of which were alleged to have been committed by force, against his stepdaughter, who was under 14 years old at the time. The information also charged defendant with three additional counts alleging his wife as the victim-one count was for corporal injury with an attached great bodily injury allegation; one count was for assault with a deadly weapon, specifically a knife; and the last count was for assault with a shotgun. During a break in defendant's stepdaughter's testimony at the beginning of his trial, defendant pled guilty to the nine counts of lewd and lascivious acts alleged to have been committed against her. Defendant does not raise any issues on appeal related to his plea. Thus, we will not recount facts related to those convictions.
As to the charges involving his wife, in August 2018, defendant's daughter awoke to defendant and her mother, defendant's wife, fighting in the garage. Defendant's wife told her daughter to leave the house. Defendant's daughter left the house with her sister, defendant's stepdaughter. When talking about the incident, defendant's daughter told the 911 operator, a responding officer, and a detective that her mother told her to get out of the house because defendant had a gun. Defendant's daughter also told a responding officer that she and her sister left the house through the side gate. While leaving the house, defendant's daughter saw a folding knife on the ground and her father picking it up and folding it closed.
At defendant's trial, his wife refused to testify despite the trial court finding her in contempt and imposing a $1,000 fine against her. Instead, the prosecution introduced, and the trial court admitted, statements she made to police officers and medical personnel. Elk Grove Police Officer Jonathan Weir testified that he responded to a call of a suspect possessing a firearm. He encountered defendant's wife at her and defendant's home after defendant had been arrested. The scene was hectic, and defendant's wife looked "frantic," "scared," "unorganized," and "disheveled." To Officer Weir, defendant's wife looked as though she had recently been the victim of a traumatic event. She was shaking and, at times, meandering around the scene. Officer Weir interviewed defendant's wife about an hour after the assault. Video of the interview captured on Officer Weir's body-worn camera was played for the jury. Defendant's wife told Officer Weir that defendant strangled her and held a loaded gun to her head. She also told Officer Weir that defendant held a knife to her throat and told her" 'I'm going to kill you, bitch.'" During the interview, medical personnel were present and asking defendant's wife questions about her injuries. When searching the front yard, Officer Weir found a loaded shotgun on the back of a car parked in the driveway. Officer Weir did not find a knife.
Defendant's wife went to the hospital. She presented with a hoarse voice caused by injury. Defendant's wife reported to her doctor that defendant had strangled her. When making the report, defendant's wife appeared sad and like she was reacting to the trauma she had just experienced. During police interviews a few days later, defendant's wife continued to present with a raspy voice and appeared to have difficulty holding a conversation.
Based on the above evidence, the jury found defendant guilty of the charges alleging his wife as the victim. The trial court sentenced defendant to an aggregate term of 39 years in prison.
Defendant appeals.
DISCUSSION
I
Sufficient Evidence Supports Defendant's Conviction For Assault With A Knife
Defendant contends insufficient evidence supports his conviction for assault with a deadly weapon, i.e., a knife, because the only evidence admitted supporting the allegation that defendant held a knife to his wife's throat was her contemporaneous statements to Officer Weir that were not corroborated by evidence of an injury or testimony by another witness who saw the assault. We disagree.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403 ....) The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. ([People v.] Boyer [(2006)] 38 Cal.4th [412,] 480.) 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' (Maury, supra, at p. 403.) A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)" (People v. Zamudio (2008) 43 Cal.4th 327, 357, some italics omitted.)
To prove a charge of assault with a deadly weapon, the prosecution was required to show, "One: The [d]efendant did an act with a deadly weapon other than a firearm, that, by its nature, would directly and probably result in the application of force to a person. [¶] Two: The [d]efendant did that act willfully. [¶] Three: When the [d]efendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone. [¶] And four: When the [d]efendant acted, he had the present ability to apply force with a deadly weapon other than a firearm. [¶] . . . [¶] No one needs to actually have been injured by [d]efendant's act, but if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the [d]efendant committed an assault." (CALCRIM No. 875.)
Defendant's wife's statements to Officer Weir were admitted for their truth. In those statements, defendant's wife said defendant held a knife to her throat. This testimony alone is sufficient to prove the fact that defendant held a knife to his wife's throat. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052 ["Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding"].) Defendant does not cite to any authority requiring defendant's wife's statements to be corroborated in order to support a guilty verdict. Indeed, defendant's wife was not an accomplice in the assault. (See Pen. Code, § 1111 ["A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense"].) The jury obviously found defendant's wife's out-of-court statements credible. We must accept that finding, unless inherently improbable or implausible. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) Defendant has not made that showing here where defendant's daughter saw defendant in possession of a folding knife, at least corroborating defendant's wife's testimony that a knife was present, and no evidence was admitted demonstrating defendant's wife's out-of-court statements were inherently implausible. Taken together, the evidence was sufficient to support the jury's guilty finding on the assault with a deadly weapon conviction.
II
Defendant Forfeited His Appellate Claim That The Trial Court Erred By Requiring Jurors To Sit Outside The Jury Box
Defendant points to several comments made by the trial court to demonstrate that all jurors were not seated in the jury box during the course of his trial, but were instead told to socially distance and sit beyond the confines of the jury box. Defendant contends that the trial court's decision to spread the jury beyond the jury box was error because it prevented all of the jurors from perceiving the testifying witnesses and prevented him from observing the jurors during trial. Because defendant did not object on these grounds in the trial court, he has forfeited this contention on appeal.
While defendant cites to instances in the record that demonstrate some members of the jury may have sat outside of the jury box, he does not cite to any instances in the record demonstrating that jurors were prevented from seeing testifying witnesses or that he was prevented from viewing the jurors. Indeed, because defendant failed to object to the seating arrangements of the jurors in the trial court, we are left without a clue as to where jurors ultimately sat or the number of jurors who were spread beyond the jury box. Importantly, we are left without a developed record to analyze whether the error defendant complains of, i.e., violation to his confrontation rights, actually occurred because jurors could not see the proceedings. (See People v. Alvarez (2022) 75 Cal.App.5th 28, 37 [a guarantee of the confrontation clause is that the defendant and fact finder be able "to view witness demeanor for the purpose of evaluating credibility"]; see also Maryland v. Craig (1990) 497 U.S. 836, 849 [face-to-face confrontation is a preference not an absolute requirement and must occasionally yield to important public policy concerns].)
Thus, we agree with the People that defendant forfeited his claim under the confrontation clause by failing to object at trial to the seating arrangements of the jurors. "As a general rule, a defendant's failure to object to an alleged trial error relieves an appellate court of the obligation to consider the claim on review. [Citation.] The reason for this rule is to allow the trial court to correct its errors and 'to prevent gamesmanship by the defense.' [Citation.] [Our Supreme Court has] applied this rule numerous times to find forfeiture of a constitutional right of confrontation claim." (People v. Arredondo (2019) 8 Cal.5th 694, 710.) Had defendant objected to the seating of jurors outside the jury box, the trial court would have had an opportunity to correct any error by rearranging the jurors, or to make additional findings on the record regarding the position of the jurors and their ability to perceive the testifying witnesses or defendant's ability to perceive the jurors. Because defendant did not object, he has forfeited his claim.
We further find defendant's efforts to excuse his forfeiture as lacking in merit. Defendant first claims any objection to the seating arrangements of the jurors was futile. We disagree. There is nothing in the record demonstrating the trial court would have refused to entertain a request to better position jurors or move them all to the jury box had defendant expressed concerns that jurors were unable to properly perceive the evidence, or he was unable to properly perceive the jurors. Further, while defendant claims he is raising "a very serious issue involving both the federal and state [C]onstitutions," his claims are highly fact dependent, and the record does not contain the facts necessary for us to determine whether error occurred. Thus, we decline to exercise our discretion to review defendant's claim that the trial court erred by requiring jurors to sit outside the jury box.
III
Ineffective Assistance Of Counsel
To establish a claim for ineffective assistance of counsel, defendant must show his counsel's performance was deficient and that he suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687692.) If either element of the ineffective assistance of counsel analysis has not been proven, the defendant's claim of ineffective assistance fails. (Strickland, at p. 697.)
We presume that "counsel's actions fall within the broad range of reasonableness, and [we] afford 'great deference to counsel's tactical decisions.'" (People v. Mickel, supra, 2 Cal.5th at p. 198.) This is because "[t]he record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) We will reverse "only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an act[] or omission." (Ibid.) If"' "the record on appeal sheds no light on why [trial] counsel acted or failed to act in the manner challenged," '" an appellate claim of ineffective assistance of counsel must be rejected"' "unless counsel was asked for an explanation and failed to provide one, or . . . there simply could be no satisfactory explanation." '" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) A defendant thus bears a difficult burden when asserting an ineffective assistance claim on direct appeal. (Mickel, at p. 198.)
Prejudice is shown when there is a" '" 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" '" (People v. Avena (1996) 13 Cal.4th 394, 418.)
A
Counsel Was Not Ineffective For Failing To Object To The Seating Arrangements Of Jurors
Defendant contends his counsel had no tactical reason for failing to object to the trial court's decision to seat jurors outside the jury box. We disagree.
"Defendant has failed to carry his burden because counsel was not asked why he failed to object, the record does not affirmatively disclose that counsel had no rational tactical purpose for the omission, and we are not convinced there could be no satisfactory explanation." (People v. Arredondo, supra, 8 Cal.5th at p. 711.) Counsel could have concluded, based on his experience in trial proceedings and in the community in which defendant's trial was held, that jurors would have felt more comfortable distanced from one another during the evidentiary portion of trial. Further, having seen where all the jurors were sitting during trial, defense counsel could have concluded that each juror adequately saw testifying witnesses and defendant, and that any benefit resulting from rearranging jurors did not outweigh the risk of upsetting them given the continued dangers related to the pandemic. In other words, defense counsel could have concluded, based on his experience in the community, that taking steps to make jurors feel safe and comfortable such that they could focus on the evidence admitted at trial was actually in defendant's best interests. Because this rational tactical reason could account for counsel's failure to object, and absent any evidence as to what the jurors could or could not see, defendant's ineffective assistance claim pertaining to juror seating arrangements lacks merit.
B
Counsel Was Not Ineffective For Failing To Object To Statements Made by Medical Personnel Captured On Officer Weir's Body-worn Camera
Defendant contends his counsel was ineffective for failing to object on hearsay grounds to statements captured on Officer Weir's body-worn camera that were made by medical personnel. We disagree.
Defendant has failed to carry his burden of demonstrating prejudice. The only statements defendant points to as being erroneously admitted were statements regarding defendant's wife's neck injury and its appearance. Evidence that defendant strangled his wife was admitted through defendant's wife's out-of-court statements, which were offered for the truth, and were uttered during the same interaction with Officer Weir and medical personnel that was captured on Officer Weir's body-worn camera and included the hearsay statements defendant now challenges on appeal. Thus, had defense counsel objected to the admission of statements made by medical personnel, and those statements had been excluded, the jury would have still heard the substance of those statements through other means, leaving the result of defendant's trial unchanged. Accordingly, defendant's ineffective assistance of counsel claim pertaining to hearsay statements contained on footage from Officer Weir's body-worn camera is without merit.
C
Counsel Was Not Ineffective For Failing To Request A Jury Instruction Pertaining To Defendant's Custody Status
Defendant contends his counsel was ineffective for failing to ensure his custody status was withheld from the jury. Specifically, defendant points to his counsel's failure to request an instruction telling the jury not to consider his custody status. We disagree.
Initially, we disagree with defendant's factual contention that his counsel failed to ensure his custody status was withheld from the jury. Defendant has not cited to any portion of the record demonstrating the jury was aware of defendant's custody status. Indeed, it does not appear that defendant's custody status was referenced in front of the jury or that he was dressed in jail clothing or wore other signifiers of custodial confinement, such as restraints. Thus, while defendant argues that the right to keep the jury from knowing he was in custody is equivalent to his right to be tried in civilian clothing, defendant does not point to any indication the jury knew he was in custody.
With the state of the record in mind, it is reasonable that counsel had a tactical reason not to request an instruction prohibiting the jury from considering defendant's custody status. Importantly, the instruction would have been the only indication defendant was in custody. By failing to include the instruction, counsel ensured defendant's custody status was never brought to the attention of the jury in any capacity.
Accordingly, defendant's counsel was not ineffective for failing to request a jury instruction pertaining to defendant's custody status.
DISPOSITION
The judgment is affirmed.
We concur: MAURO, J., KRAUSE, J.