Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr., Judge, Ct.No. INF052946
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci, Ronald A. Jakob, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted Jose Higuera of one count of burglary, a violation of Penal Code section 459, and one count of resisting arrest, a misdemeanor violation of section 148, subdivision (a)(1). He was acquitted of receiving stolen property, a violation of section 496, subdivision (a), and possessing burglary tools, a misdemeanor violation of section 466.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending that his trial counsel was constitutionally ineffective.
I. FACTS
Gabriela Mendoza testified that she is a Cathedral City police officer. She was on patrol in Cathedral City on December 28, 2005, at 12:30 a.m., when she observed defendant riding a bicycle. Defendant was wearing dark clothing and carrying bags on his shoulder. The bike didn’t have any lights, and defendant was crossing the middle of the roadway.
Officer Mendoza decided to stop defendant to investigate these violations. Defendant initially stopped and the officer approached him on foot. But defendant did not follow the officer’s commands and began to run away with the bags. The officer chased him and defendant was quickly apprehended by other officers. Officer Mendoza recovered the bags and other items that defendant dropped during the chase. A multiuse tool which could be used for illegal entries was found in one of the bags.
A name in the bags led officers to a nearby apartment. When the officers went to the apartment, they saw indications that it had recently been burglarized. A door to the apartment had recent-looking pry marks and damage to the door frame. The tenant was contacted, returned home, and found that the house had been ransacked. The tenant identified items taken from defendant as items which had been taken from her apartment.
Officer Mendoza also collected defendant’s shoes and matched them to footprints found about six feet from where the apartment was entered. Another officer testified that the footprints were “all over that courtyard, and they’re actually around the back and stopped at the rear window of the victim’s residence also.” The officer testified that defendant’s shoes matched the pattern in the sand outside the victim’s apartment. The officer also testified that a small knife on defendant’s multiuse tool had “paint or some kind of substance on the blade that is pretty much the same color as [the victim’s] door.” The officer noted that the knife blade was bent and twisted, and the pry marks on the door were consistent with the bent knife blade.
Defendant testified that he bought the bags carrying the stolen property from a man named Luis at a local market. On his way home, he was stopped by the officer. To explain the footprints, defendant told the officer that he had been outside the burglarized premises the day before, looking for a suitcase that he had lost. He denied burglarizing the apartment.
Another witness testified that she saw defendant before his arrest. He was walking his bicycle and he asked another person if she would watch his suitcase for him while he went to put air in his tire. When he returned, the suitcase was missing, and he went around the apartment complex looking for it.
As noted above, the jury resolved the disputed issues by finding defendant guilty of burglary and resisting arrest, and not guilty of receiving stolen property and possession of burglary tools.
II. FACTS RELATING TO THE INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT
Defendant argues that his trial counsel was constitutionally ineffective in two regards: (1) counsel failed to object to the admission into evidence of a photograph of his bicycle which showed a large knife attached to the bicycle; and (2) counsel failed to request an instruction limiting the use of his prior conviction, or requesting it to be sanitized.
On direct examination, defendant claimed he left the suitcase with a woman at the victim’s apartment complex while he was getting a flat tire on his bicycle repaired. On cross-examination, the prosecutor attempted to construct a time line of events. He showed defendant a picture of defendant’s bicycle and pointed out that the tire had been fixed by the time the picture was taken. The photograph was marked for identification as exhibit 1 and subsequently admitted into evidence.
During deliberations, the jury asked a question concerning the photograph: “There are items in the photo not brought up in court. Can we consider the other items in the photo as evidence?”
Before the court could answer the question, the jury reached their verdicts. After taking the verdicts, the court retrieved the photograph from the jury and noted that “there does appear to be a very large knife on the side of the bicycle.” Defense counsel said: “Unfortunately, I missed it. I didn’t realize it.” Defense counsel did not object to the introduction of the photograph into evidence.
Defendant’s second contention is that his counsel was ineffective regarding his prior conviction. Defendant had a prior theft-related misdemeanor conviction, and his violation of probation on that conviction was considered by the trial court at the same time as the current trial. The issue was first raised by defense counsel before trial when he attempted to have the prosecution bring in the facts of the prior case, rather than simply relying on the fact of conviction. The trial court ruled that the prior conviction could be used to impeach defendant. Specifically, the trial court ruled that, if defendant testified, he could be impeached by use of the conviction for violating Vehicle Code section 10851, a misdemeanor.
The prior conviction was for unlawful taking of a motor vehicle without the owner’s consent. The probation report explains that defendant and a friend loaded a motorcycle into a pickup truck and drove away with it.
Defendant testified on direct examination that he pled guilty to a misdemeanor charge of taking a motor vehicle in March 2005. At the end of his direct examination, he was asked if he broke into the victim’s apartment. He replied: “No, sir. I don’t do that. I don’t do those things.”
Given this opening, the prosecutor began his cross-examination by clarifying that “those things” meant that defendant did not break into apartments. The prosecutor then pointed out that defendant had previously been convicted of stealing.
The jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 316: “If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
III. DISCUSSION
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland).) In Strickland, the Supreme Court established a two-part test for determining whether counsel’s performance had been deficient in a particular case, and whether there was prejudice. The court said: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Id. at p. 687.)
Explaining the first requirement, the court said: “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland, supra, 466 U.S. at p. 690.)
The court also defined the prejudice standard: “The defendant must show that 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.” (Strickland, supra, 466 U.S. at p. 694.)
In the years since Strickland was decided, its principles have been applied in countless cases. (See, generally, 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, §§ 203-221, pp. 318-347.) Defendant’s first contention, that his counsel was ineffective for failing to object to the admission of evidence, i.e., the picture of the bicycle with a large knife on it, has been raised in a number of similar cases. (Id., § 217, pp. 339-342.)
Failure to object to the admission of evidence rarely establishes ineffective assistance of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.) In People v. Frierson (1979) 25 Cal.3d 142, defendant cited his attorney’s failure to object to the admission of certain potentially prejudicial photographs. (Id. at p. 158.) Our Supreme Court said: “The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel’s part and seldom establish a counsel’s incompetence. As we recently observed ‘Matters involving trial tactics are matters “as to which we will not ordinarily exercise judicial hindsight . . . .” [Citation.] “In the heat of a trial, defendant’s counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel . . . .” [Citations.] . . . “The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence . . . .”’ [Citations.] [¶] Incompetence of trial counsel is not demonstrated on the face of the appellate record.” (Ibid.)
Defendant argues that there was obviously no tactical decision not to object because his trial counsel simply did not realize that the photograph showed a large knife on the bicycle. He therefore concludes that “[t]rial counsel’s failure to see it in time to object to it was clearly due only to his own neglect.”
While we agree that trial counsel should thoroughly review proposed exhibits in order to determine whether to object to them or not, we do not believe that counsel’s failure to do so here rises to the level of being so serious as to deprive defendant of a fair trial. The Sixth Amendment guarantees a defendant competent representation. It does not guarantee perfect representation. Seldom, if ever, does a trial occur where counsel does not a mistake or fail to object to inadmissible evidence.
We also note that on a quick look, the knife is not readily apparent. In viewing the photograph, it initially appears that the knife handle is some sort of a gear shift lever and is part of the bicycle.
In any event, the question of whether there was a knife in the picture was not critical to any of the issues in the case. Defendant was not charged with any crime involving use of the knife, or any crime of violence. But even if trial defense counsel was deficient in failing to object to the introduction of the photograph into evidence, we agree with the People that defendant has not met his burden of showing prejudice. The case against defendant was a relatively strong one, and we find no reasonable probability that the outcome of the proceeding would have been different if a proper objection to the introduction of the photograph had been made. Here, evidence before the jury was that as defendant was being approached by the officer, defendant began to run away with the bags. The officer chased him and defendant was quickly apprehended by other officers. Officer Mendoza recovered the bags and other items that defendant dropped during the chase. A multiuse tool which could be used for illegal entries was found in one of the bags.
A name in the bags led officers to a nearby apartment. When the officers went to the apartment, they saw indications that it had recently been burglarized. A door to the apartment had recent-looking pry marks and damage to the door frame. The tenant was contacted, returned home, and found that the house had been ransacked. The tenant identified items taken from defendant as items which had been taken from her apartment.
Defendant’s shoes matched footprints found about six feet from where the apartment was entered. The footprints were “all over that courtyard, and they’re actually around the back and stopped at the rear window of the victim’s residence also.” A small knife on defendant had “paint or some kind of substance on the blade that is pretty much the same color as [the victim’s] door.” The knife blade was bent and twisted, and the pry marks on the door were consistent with the bent knife blade. In conclusion, we do not believe the present record is such as to warrant reversal under Strickland, based on the admission into evidence of defendant’s bicycle.
Turning to the prosecution’s use of the prior conviction, defendant urges that his trial defense counsel should have requested “an additional limiting instruction that the jurors could not use the prior conviction as proof that [he] committed the burglary charge for which he was being tried, nor did he alternatively request an order that the trial court ‘sanitize’ the conviction so that the jury would only learn that the prior was an unspecified misdemeanor conviction involving moral turpitude.”
However, on direct examination, defendant admitted that he had pled guilty to a misdemeanor charge of taking a vehicle. His problem arose at the end of his direct examination when he denied burglarizing the apartment by saying, “I don’t do those things.” The prosecutor immediately seized the opportunity to point out that he had been convicted of stealing.
We agree with the People that defendant’s unsolicited response was good character evidence, i.e., his opinion that he was not the kind of person who commits burglaries, which could be rebutted by evidence of his bad character, i.e., evidence that he had previously been convicted of stealing. (Evid. Code, § 1102.)
The jury was properly instructed with CALCRIM No. 316: “If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
As noted above, defendant argues that trial defense counsel should have requested an additional limiting instruction. However, the instruction given clearly informs the jury that it could use the prior conviction only to evaluate the credibility of the witness. Defendant cites Evidence Code section 355, but that section does not help him. It states: “When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” CALCRIM No. 316 carried out that responsibility here and defendant has not shown that his trial defense counsel was ineffective for failing to request a further instruction. When a subject is adequately covered by an instruction, it is not ineffective assistance of counsel to fail to request an additional instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1015-1018.)
On the sanitizing issue, we note that, as described above, the misdemeanor conviction was effectively sanitized on direct examination by referring to it as taking a vehicle. Defendant’s problem arose with his unsolicited comment at the end of his direct examination that he was not the kind of person who committed burglary. As discussed above, that unsolicited comment allowed the prosecutor to ask the defendant if he had previously been convicted of stealing.
We therefore conclude that trial defense counsel effectively sanitized the prior conviction. Defendant has not shown that counsel’s performance in this regard was constitutionally ineffective, nor has he shown prejudice.
IV. DISPOSITION
The judgment is affirmed.
We concur: Gaut, Acting P.J., Miller, J.