Opinion
C077055
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS ROBERT DAVIS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62130077)
Defendant Thomas Robert Davis appeals following conviction on three counts: making criminal threats (Pen. Code, § 422; unless otherwise stated, further statutory references are to the Penal Code), inflicting corporal injury on spouse (§ 273.5, subd. (a)), and misdemeanor possession of tear gas by a felon (§ 22810, subd. (a).) Defendant contends the trial court improperly (1) allowed evidence of prior domestic abuse by defendant, (2) excluded evidence of the victim's pharmacy records, and (3) denied his motion to appoint new counsel under People v. Marsden (1970) 2 Cal.3d 118. Defendant also claims ineffective assistance of counsel. We affirm the judgment.
FACTS AND PROCEEDINGS
Defendant and his wife, the victim, have been married for over 40 years but no longer live together. On the morning of April 28, 2014, defendant showed up at the victim's home. He was drunk, and she told him to leave. She left to visit her daughter, expecting defendant to leave. Around 4:00 p.m. the victim returned home and smelled something burning. The oven was on, and pans stored in the oven were burning. Defendant was asleep in a chair. Barbecue sauce and beans had been spilled on defendant, the kitchen counters, and the floor. A nearly-empty bottle of alcohol stood on the kitchen counter.
Defendant woke up, very drunk. The victim poured the rest of the alcohol down the drain. Defendant yelled at her. She left the house. He followed her. He pushed her against the car, grabbed her sweatshirt and said he was going to kill her. As she tried to get away, he pushed her and stumbled, and they both fell to the ground, injuring the victim's knee. Defendant went back in the house and the victim called 911.
The responding officer testified that, after their arrival, the victim was shaking, and her knee was injured. She said her husband pushed her in the chest with his open hands, causing her to fall. Defendant was not there when police arrived but he appeared a few minutes later. Defendant was drunk and had pepper spray in his pocket.
Over defense objection, the trial court allowed evidence of four prior incidents between defendant and his wife. The trial court excluded a fifth incident.
Defendant's wife testified about other incidents, in each of which someone called the police. In January 2006, the victim was home, recovering from neck surgery. Defendant got drunk and complained she should be doing more around the house. He grabbed her and shook her, causing bruising to her arms. She called the police.
On June 17, 2007, defendant was drunk and threw something from the refrigerator at his wife, cutting her lip. He trapped her in the bedroom and she used her sewing basket as a shield. Defendant pushed her and struck her with his open hand.
In May 2009, while the victim's daughter was living in the residence with two minor children, defendant arrived home, drunk, and grew angry about the daughter's property being stored in the garage. Defendant grabbed his wife and threw her into one of the packing boxes. The daughter, summoned as a reluctant prosecution witness, testified she did not remember much, just that she and her parents were in the garage, her father was yelling at her about boxes, and she left and did not see anything happen.
In October 2011, defendant got angry with his wife, claiming the bathtub was overflowing, yanked her into the bathroom, and pushed her head down to show her the tub. She testified she did not appear in court on that matter because defendant would not let her. The court told the jury it took judicial notice that she did testify in that matter. (Defendant was apparently acquitted on one charge and the jury deadlocked on another, though it is not clear whether the jury in this case was told.) It was the 2007 criminal case in which the victim evaded service of a subpoena.
There are eight security cameras in and around the victim's home. She said defendant installed them. There was no video of the foregoing incidents. The trial court excluded video of other incidents of defendant yelling at the victim.
Defendant testified regarding the current charges that he had spent the night at his wife's home, as she wished, woke up around noon, went to a bar, had a few drinks, returned to his wife's home, and fell asleep. His wife arrived and was immediately in "a psychotic rage," as she sometimes is, for any reason or no reason. Defendant tried to leave, but she attacked him with a wood fence board and she fell, apparently injuring herself. He rode away on his bicycle. He bought the pepper spray several weeks before this incident, because an unidentified person hit defendant in the back of the head as he walked home one night.
Defendant denied ever striking or offensively touching his wife or saying he would kill her. Some charges were filed against defendant but were dismissed because his wife did not show up in court, and he did nothing wrong. He was convicted on marijuana charges 25 years ago, which the jury was told was being admitted for the limited purpose of showing felon status for the charge of unlawful possession of tear gas. Regarding the bathtub incident, defendant said his wife was in a "comatose[] state" and he did not want her getting into the tub in that condition.
The prosecution called as a rebuttal witness a deputy district attorney who testified she had to dismiss certain domestic violence charges against defendant in 2007 because the investigator could not locate the victim to serve her with a subpoena.
The jury found defendant guilty on all counts -- criminal threats, domestic violence, and felon in possession of tear gas. At the prosecutor's request, the trial court corrected the third count (possession of tear gas by a felon, § 22810, subd. (a)) from a felony to a misdemeanor.
Based on defendant's alcohol addiction and the minor nature of the injuries inflicted on the victim, the court placed defendant on formal probation for five years, with conditions including some jail time and participation in drug rehabilitation and a batterer's program.
DISCUSSION
I
Evidence of Prior Incidents of Domestic Violence
Defendant argues the trial court abused its discretion by allowing evidence of his prior domestic violence against the same victim under Evidence Code section 1109.
The statute provides in part that, subject to exceptions inapplicable here, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 [evidence of character is generally inadmissible to prove conduct] if the evidence is not inadmissible pursuant to Section 352 [court may exclude evidence more prejudicial than probative]. . . ." (Evid. Code, § 1109, subd. (a).)
The difficulties of proof unique to the prosecution of certain crimes such as domestic violence, and the " 'typically repetitive nature' " of domestic violence, favor admission of evidence of prior acts. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233; People v. Johnson (2010) 185 Cal.App.4th 520, 532 (Johnson).) Admissibility turns on whether the evidence is probative, whether hearing it would take too much time, and whether it would be unduly prejudicial or misleading. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) " '[P]rejudice' " under section 352 does not mean "damaging" to defendant but refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual which has very little effect on the issues. (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Our review is for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
Here, the prior acts had high relevance to intent (which was an essential element for the current charge) and absence of accident (which was defendant's version). The court instructed the jury that the prosecutor had to prove defendant "willfully" inflicted a physical injury on his spouse. As defendant points out on appeal, he wanted the jury to believe that it was an accident -- that he was drunk and that the defendant lost his balance and the two fell to the ground. The evidence did not consume much time.
Defendant argues the prior acts should have been excluded because they were all reported by the same person; none resulted in a conviction; the prior acts or injuries were more egregious than the charged offense; and the prior acts would arouse a prejudicial emotional bias against defendant.
Defendant discusses case law that turned on different facts, e.g., where the prior incidents involved different victims or resulted in criminal convictions. (E.g., Johnson, supra, 185 Cal.App.4th 520.) If he means to suggest that, since those facts are not present in this case, the evidence should not have been allowed in this case, we disagree. Each case turns on its own facts. Evidence of prior acts may be allowed even if the defendant was not convicted of the prior acts. (People v. Mullens (2004) 119 Cal.App.4th 648, 652, 665-668.) Prior acts of domestic violence between the same defendant and victim are admissible, and the defendant's antagonism toward that person goes to show intent and motive. (People v. Kovacich (2011) 201 Cal.App.4th 863, 893.)
Defendant contends the prior incident after his wife had neck surgery could have distracted the jury and angered them against defendant for not being a concerned and caring husband. However, defendant himself showed the jury his uncaring attitude toward his wife when he admitted calling her an ass, a bitch, and "the N-word" -- for which he apologized not to her, but "to the [B]lack community." He blamed her for making him frustrated with her "psychiatric behavior and psychotic episodes." He blamed her that she sometimes stayed up late at night, because he normally waited until she fell asleep before he started consuming alcohol.
The prior acts were properly admitted into evidence.
II
Victim's Medication Records
Defendant argues the trial court abused its discretion in refusing to review the subpoenaed pharmacy records which violated defendant's federal Sixth Amendment right to confront his accuser and unduly limited cross-examination.
A. Background
The prosecutor moved in limine to exclude any evidence of the victim's prior use of prescription drugs as irrelevant (Evid. Code, § 210) and more prejudicial than probative under Evidence Code section 352. At the preliminary hearing, the defense had been allowed to ask the victim about medications, and she said she was taking medication only for arthritis and diabetes and had not taken any psychiatric medication for at least two years.
Defense counsel said he had subpoenaed records that may show the victim's use of psychotropic medications, opiates, and potentially painkillers used after various medical procedures and potentially under the care of a psychiatrist, that he wanted to use to attack the victim's credibility and show potential effect on perception and memory. Counsel admitted he was not planning on presenting any expert opinion but believed it was "of general knowledge to the public." But he admitted his intended argument that even cessation of such drugs could alter perception was not within lay knowledge.
The trial court granted the prosecutor's motion to exclude evidence of prescription drug use by the victim. The defense had made no offer of proof regarding such use or how such use would affect credibility.
On the third day of trial, after the victim had already testified, defense counsel stated he received the victim's pharmacy records pursuant to a subpoena duces tecum served on Rite Aid pharmacy without notice to or consent by the victim. Defense counsel did not read the records because he did not have the patient's consent, but he had his investigator look at the records, and the investigator thought "they could potentially conflict" with the victim's preliminary hearing testimony that she had not taken any psychiatric medication for at least two years. The defense told the court the Rite Aid records would perhaps show psychiatric medication had been prescribed within that time period. Counsel admitted the records would not impeach anything the victim testified to at trial, and he wanted to use them only to show she previously lied under oath, and he wanted his investigator to question the victim further. Defense counsel asked the judge to read the records.
The court did not read the records but expressed concern about lack of notice to the victim and that the records should have come to the court rather than to defense counsel. The court summoned the victim, who confirmed she was unaware of the subpoena, and she objected to any release of her records.
The People sought exclusion of the records for noncompliance with subpoena requirements and because the issue was collateral and had little probative value.
Defense counsel admitted he had no expert witness to testify about the effect of drugs on memory or perception.
The trial court excluded the records from evidence, because the victim objected and was not given notice, there was no verification from any custodian of records, and the evidence was not relevant, or any relevance was outweighed by potential prejudice and consumption of time under Evidence Code section 352.
B. Analysis
Whether rooted in the Sixth Amendment Confrontation Clause or the Fourteenth Amendment Due Process Clause, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690 .) Generally, the application of ordinary rules of evidence, such as Evidence Code sections 210 (admission of relevant evidence) and 352 (discretion to exclude evidence), does not impermissibly infringe on the accused's right to present a defense. (People v. Snow (2003) 30 Cal.4th 43, 90.) "Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) The trial court retains wide discretion to limit cross-examination that is prejudicial, confuses the issues, or is of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 .)
Defendant's complaint on appeal is that the judge did not read the pharmacy records and thereby violated the Confrontation Clause and due process. (Pointer v. Texas (1965) 380 U.S. 400, 405 [accused has a right to cross-examine the witnesses against him].) Defendant cites our opinion in People v. Reber (1986) 177 Cal.App.3d 523, 532, that a trial court should review in camera subpoenaed documents to which someone has objected on grounds of privilege.
We conclude that, even setting aside the lack of foundation and failure to notify the person whose records were being sought (which defendant argues as ineffective assistance of counsel), defendant's argument borders on the frivolous.
Appellate counsel argues that, if the judge had determined the pharmacy records contained admissible evidence, the defense could have shown that the medications coupled with the victim's physical disability could cause her to lose her balance. Appellate counsel offers no citation to the record, and we see nothing in the record, where the defense offered the evidence to show that medications made the victim lose her balance. In any event, the defense admittedly had no expert witness about any potential effect of any drug.
Appellate counsel asks that we remand to make the trial court review "both the pharmacy and the psychiatric records that the Defense counsel had subpoenaed but failed to get before the trial court in a timely manner for review." The defense never presented any psychiatric records until the sentencing hearing, at which point counsel simply turned them over, unread, to the trial court without any request.
Insofar as defendant views the records as relevant to impeach the victim, we disagree. Assuming for the sake of argument that the pharmacy records showed that the pharmacy filled prescriptions for the victim, that would not show the victim's prior testimony was incorrect but rather would have required a side-trial as to the victim's consumption of medication, as the defense apparently understood given that he told the court he wanted his investigator to be able to question the victim about the records.
Even assuming the defense could elicit that the victim took the medications, he would then have to adduce evidence of the preliminary hearing transcript, which would show nothing more than that she gave different testimony at the preliminary hearing. It would not show she lied. Moreover, her prior drug use was not an issue at the prior hearing, where she was not asked at the preliminary hearing about past medications. She was only asked whether she was on any "psych medication" on the date of the current incident, and she said no and then volunteered that she had been off such drugs for two years. Even assuming she lied rather than misremembered or misspoke, that matter was not even relevant at the preliminary hearing.
Defendant was able to challenge the victim's memory. For example, as counsel argued to the jury, the victim testified she did not show up for court in 2011, but other evidence showed she did testify in that matter. It was the 2007 criminal case in which the victim did not testify.
Defendant fails to show any error, abuse of discretion, or prejudice. He just says we cannot speculate as to whether the jury would have accepted the defense theory that, if the victim lied at the preliminary hearing about medication, the jury should reject her trial testimony about being attacked by defendant.
The defense cites Davis v. Alaska (1974) 415 U.S. 308 , which held admissible evidence that a key prosecution witness was on juvenile probation at the time of his testimony, which the defense sought to use to argue that the witness may have been biased in favor of the prosecution out of concern of jeopardy to his own probation status.
Defendant maintains his case differs from People v. Jennings (1991) 53 Cal.3d 334, which found no reversible error where the trial court precluded the defendant from challenging the veracity of adverse witnesses with evidence that they committed perjury when applying for county welfare benefits. Defendant points to Jennings' discussion that, even assuming error, it was harmless because the defense was allowed to adduce evidence of the witnesses' prostitution, burglary conviction, and heroin addiction. (Id. at pp. 371-372.) However, Jennings first held there was no error. (Ibid.)
Defendant says the victim was the only witness concerning the subject incident. However, the responding police officer saw that the victim was shaking and injured.
Defendant fails to show evidentiary error.
III
Effective Assistance of Counsel
Defendant argues trial counsel was ineffective in that (a) he failed to investigate and prepare for trial properly and diligently, and (b) he failed to give notice to the victim that her medical records were being subpoenaed. Defendant fails to show any constitutional violation.
To prevail on a claim of ineffective assistance of counsel, defendant bears the burden to show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiencies, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685 ; People v. Pope (1979) 23 Cal.3d 412, 422-425.) The appellate court need not address the first prong if it concludes defendant fails to show prejudice. (Strickland, supra, 466 U.S. at p. 697.) We defer to counsel's tactical decisions, and if counsel was not asked for reasons we reverse only if there could be no satisfactory explanation. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
A. Contentions of Inadequate Investigation and Preparation
Defendant complains counsel went to trial without having obtained the pharmacy (or psychiatric) records he later unsuccessfully proffered to the court and without appreciating the need for an expert witness. Defendant cites People v. Gurule (2002) 28 Cal.4th 557, 591-592, that a witness's mental illness or instability may be relevant to credibility if it affects the ability to perceive, recall or describe events.
The record does show trial counsel incorrectly argued an expert witness was not needed because everyone knows psychotropic and pain medication can affect perception and memory. However, that does not mean counsel was ineffective for failing to hire an expert witness before knowing whether or not such an expert was needed. The time constraints were not attributable to counsel's lax preparation but rather defendant's refusal to waive his speedy trial right.
Appellate counsel says that in the first confidential hearing where the court allowed defendant to complain about trial counsel, "defense counsel stated to the trial court his reasons for not investigating [defendant's] information was his work-load and lack of time prior to trial." The citation to the record shows trial counsel merely said, "I took this assignment over in the domestic violence department in our office on June 8th or 9th approximately. [Trial began on June 23, 2014.] I was handed a number of cases and proceeded to begin dealing with them." Trial counsel continued: "A couple days later, I spoke with [defendant] at the jail for maybe at least 45 minutes, potentially an hour. . . . I do recall a good amount of that conversation, including discussing his wife's mental health state, her prescriptions, and her psychiatrist, and potentially subpoenaing those documents. I drafted subpoenas and had those given to my investigators the next day." Counsel did go on to say he was in court "quite a bit that week, and there was a point when my voicemail was full."
Appellate counsel claims "Defense counsel stated at various times he did not have enough time to do a proper investigation or subpoena the necessary documents needed for the defense of his client." The first portion of cited record shows defendant (not trial counsel) telling the court that trial counsel said there was not enough time for subpoenas and counsel wanted defendant to waive time. The second portion of cited record shows trial counsel told the court regarding criminal transcripts rather than medical records, "I informed [defendant] that, if I were [to] attempt to subpoena transcripts, they would not be prepared in time. We did not have enough time to get those prepared if he wanted to go to trial this week which he again informed me that he wanted to do." Counsel added he did not summon the police involved in prior incidents because he believed that questioning officers on past events negative to defendant was not good trial strategy.
Defendant argues that, "If defense counsel believed he did not have time to properly investigate all meritorious defenses and prepare for trial," he should have requested a continuance, despite defendant's refusal to waive his right to a speedy trial. (Townsend v. Superior Court of Los Angeles County (1975) 15 Cal.3d 774, 780 [attorney can obtain continuance without client's consent to waive statutory speedy trial timeline under § 1382].) However, defendant fails to show that he had any meritorious defense based on the victim's pharmacy or psychiatric records. And the record shows trial counsel believed that avenue would not be helpful, and the victim presented herself well in her trial testimony.
Defendant points out that, on the date set for sentencing, trial counsel said he received psychiatric records three days after trial but did not read them. He turned them over to the court. As with the pharmacy records, this does not demonstrate ineffective assistance of counsel.
Defendant mentions it was the prosecutor, not defense counsel, who pointed out at sentencing that he had improperly charged the tear gas matter as a felony when it should have been a misdemeanor. Defense counsel should have noticed and brought it up sooner. However, defendant was obviously not prejudiced.
B. Failure to Notify Victim of Subpoena
As to defendant's argument that counsel was ineffective in failing to notify the victim of the subpoena for her records, defendant appears to think the trial court would have allowed the records into evidence had the victim been notified. The record shows to the contrary. The court notified the victim. She objected. In the trial court and on appeal, defendant has failed to show any basis for overcoming her privacy rights.
Defendant fails to show ineffective assistance of counsel.
IV
Marsden Motion
A. Background
The trial court gave defendant three confidential hearings in which to complain about his public defender. He asked for new counsel only at the third hearing, after the prosecution had rested its case.
The first hearing was the first day of trial, June 23, 2014. Defendant had multiple complaints, e.g., he tried calling his lawyer but on one occasion the voice mailbox was full; his lawyer was unprepared for trial and did not do everything defendant wanted such as summon police officers and transcripts that would supposedly impeach the victim about prior accusations; defendant did not trust his lawyer and thought the lawyer implied an opinion that defendant was guilty; defendant prepared 14 pages of information and viewed it as a "red flag" that the lawyer returned photocopies with light ink rather than returning the originals; trial counsel said he had "spoken" to the previous public defender who handled the preliminary hearing but later admitted they only "text[ed]." When the court asked if defendant wanted a new lawyer, defendant said no, "I'm not willing to waive time." At the court's invitation, trial counsel responded, including that he was assigned the case on June 8th or 9th (trial began on June 23rd); he subpoenaed the victim's records; the 14 pages contained many questions defendant wanted counsel to ask of witnesses; when defendant the week before trial asked to subpoena police officers and transcripts about prior matters, counsel told him there was not enough time unless defendant waived his speedy trial which he refused to do, but counsel also made a strategic decision that such evidence would not help defendant.
At the second hearing, defendant complained counsel had not used any of the 14 pages of questions, which defendant considered important to test the victim's behavior and recall and prove the victim is permanently mentally disabled because of the neck surgery. When probed as to whether he was asking for new counsel, defendant said he did not know and asked the court what would happen. The court said it could not give defendant legal advice. Defendant said he was not asking for a new lawyer but "certainly hope[d]" his lawyer would elicit the needed information when defendant testified. Trial counsel reported he had not received subpoenaed medical documents. He noted the 60 days for a speedy trial would end on July 8th.
At the third hearing, defendant reiterated his poor opinion of counsel. Defendant complained to the court that counsel refused to cross-examine the victim about crying to the police on multiple occasions, "He's going to kill me." Defendant complained about numerous questions counsel refused to ask, e.g., was the stove a good stove; did defendant save money; why did the victim come home early the day in question (it was her fault he was drunk because he did not think she would be home so early); did the officer think the kitchen was a mess. Defendant asked for a new lawyer. Defense counsel explained he did not ask the questions because he did not think they were relevant, did not know what the answer would be, and/or expected the answer to be detrimental to the defense.
When defendant told the court that counsel should be replaced for missteps in acquiring records, the court explained it appeared it was Rite Aid which was supposed to notify their customer of the subpoena, and Rite Aid failed to do so.
The court found defendant was being adequately represented, and the difference of opinion did not warrant a new lawyer, and defendant said he did not want to represent himself. The court denied the Marsden motion.
B. Analysis
A criminal defendant is not entitled to have the court replace appointed counsel unless the defendant shows in a Marsden motion that his right to effective assistance of counsel would be substantially impaired if the original lawyer continues to represent the defendant or that attorney and client have such an irreconcilable conflict as to make incompetent representation likely. (People v. Sanchez (2011) 53 Cal.4th 80, 87; People v. Earp (1999) 20 Cal.4th 826, 876.) We review denial of a Marsden motion for abuse of discretion. (Sanchez, supra, 53 Cal.4th at p. 87.)
Defendant argues the trial court abused its discretion in denying his Marsden motion because trial counsel's performance fell below the standards of competent counsel, and because the relationship between attorney and client was so irrevocably impaired that ineffective representation was likely to result.
We have explained that defendant fails to show trial counsel's performance was deficient, and defendant's disagreement with counsel over trial strategy did not compel the court to appoint new counsel. It is apparent that defendant -- unencumbered by the rules of law that bind officers of the court -- merely considered himself smarter than his lawyer. He continues to misunderstand on appeal, arguing that if he and his lawyer "were able to have trust and confidence in each other, defense counsel would have asked [the police officer] what was the condition of the house on that day in question."
Defendant fails to show grounds for reversal.
V
No Cumulative Prejudicial Error
Based on our foregoing discussion, we reject defendant's final argument that the cumulative effect of errors prejudiced him.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. DUARTE, J.