Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CR023470
MORRISON, J.
A jury convicted defendant Grant Albert Wolfenden, III, of assault with a deadly weapon—a beer bottle—based on an altercation at an Indian casino on April 22, 2006. (Pen. Code, § 245, subd. (a)(1).) The trial court sentenced him to prison for the upper term of four years and defendant timely filed this appeal. We shall modify and affirm.
FACTS
Defendant and a correctional officer argued in a casino bar, then the defendant struck the officer on the head with a beer bottle. The main issue at trial was whether or not defendant struck the officer out of fear that he would be attacked by the officer.
High Desert State Prison Correctional Officer David Van Meter testified that he, his wife Lisa, and her friend Mary Ramsey were at the Diamond Mountain Casino on the night of April 21-22, 2006. At some point the trio went to the Willow Room, which had a bar and dance floor. After midnight, when they had been in the Willow Room for a couple of hours, Van Meter returned from dancing and found defendant sitting at their table. He did not touch the defendant nor did he threaten him. He testified as follows:
“I returned from the dance floor, walked back to our table where our belongings were, our drinks were sitting and my wife’s girlfriend was sitting. This gentleman was sitting in our seat. My wife . . . stated that he was in our seat. There was some words exchanged between him and her. I intervened and just asked him if he’d move, there was other seats available.
“Q. What happened then?
“A. He told me I needed to go get a bouncer. Instead of escalating further I, at the time, talked to him calmly. He spun around and hit me on the top of the head with the bottle.”
This made Van Meter “quite aggravated.” He put his hand out to keep space between them as defendant punched at him, and ended up “tusseling a little bit to where I got him back over into the corner of the bar where I [kept] him against the wall until security staff showed up.” Van Meter was handcuffed, taken to the hospital and then to the jail. He was later released. He recalled telling an officer that in addition to the blow to the head, he was punched three times. He had a gash on his head, swelling “like I had a grapefruit under the skin” and suffered headaches for a few days. He testified that from about 2:30 that afternoon until the assault after midnight, he had about three beers, and he was not intoxicated.
Images of the assault were captured by casino security cameras and were played for the jury. We have seen the images and although the quality is poor and not all of the movements of defendant and Van Meter are captured, the images are consistent with Van Meter’s testimony. One film clip and photographs in evidence show Van Meter’s cut head and torn shirt. He is nearly bald.
Tina Roper, a taxi driver who had been called to pick up the Van Meters at the casino, testified that Van Meter did not touch defendant before defendant struck him with the bottle; she was so close she was sprayed with beer.
Mary Ramsey, Lisa Van Meter’s friend, testified that the trio had been in the Willow Room for a couple of hours when defendant sat down at their table. She told him her friends were sitting there and he said he would move when they came back. He was drunk. She got up to speak to a friend and when she returned (after a song or two had been played), and the Van Meters arrived, she reminded defendant that he had agreed to move. Van Meter did not touch defendant before defendant struck him.
Lisa Van Meter testified the trio had been in the Willow Room for about “two to three hours” when the incident happened. When her husband told defendant the table was taken and that the drinks on the table were theirs, the defendant said to call a bouncer:
“And Dave said, ‘A bouncer? Why would we need a bouncer? This is our table.’
“Q. What happened then?
“A. He [defendant] picked up a beer bottle then hit Dave in the head.”
Lisa Van Meter also testified her husband had not touched defendant before being struck by the bottle.
Defendant testified he sat at an empty table and Ramsey asked him to leave. Van Meter then came up behind him and told him to leave. When defendant refused, Van Meter became impatient and leaned over his shoulder, and defendant felt a “tug” on his arm, so he pulled away, stood up and turned around. Defendant claimed his memory was unclear: “And after that there’s bits and pieces. It’s a blur. I don’t remember.” “I was confused.” Although watching the video images helped him remember, “there still are pieces of the puzzle that are lost on my part.” He saw Van Meter looking at him meanly and “felt like I was in imminent danger by this individual.” He swung at Van Meter with his left hand, his dominant hand. Defendant testified that Van Meter was holding a bottle, too.
On direct examination defendant testified he had been in one or two fights before, but he had not started them. On cross examination he admitted having about seven beers and one shot of tequila that night. He admitted this had impaired his perception.
Defendant testified that he had been convicted of felony burglary, second degree, in 1991.
Susanville Police Officer Steven South testified that when he arrived Van Meter was in handcuffs, “ranting and raving.” “I remember he was upset with the casino staff for handcuffing him. He was upset he got hit in the head with a beer bottle.” Because Van Meter was talking loudly, his eyes were watery and bloodshot and he smelled of alcohol, Officer South believed Van Meter was drunk and arrested him for public intoxication; in part he believed that due to the head injury, Van Meter could not take care of himself. At the hospital Van Meter told him there had been two people at the table and vile words were exchanged before Van Meter was struck in the head with a bottle or glass; he tried to keep the man away but was punched three times.
Miles Schriver testified without objection that on July 28-29, 2004, he was tent camping at Lake Almanor with his wife and children. Around midnight he heard a noise and went to investigate. He saw defendant, who appeared to be “hiding from someone, other people with flashlights coming down the roadway.” The camp hosts, two retired men, asked defendant to leave, but he replied with an obscenity and refused. Even though Schriver did not have a flashlight, defendant then shined a flashlight in Schriver’s eyes, said words to the effect of “‘How do you like that?’”, then came nearer: “I went to block the beam and I was struck across the head with the flashlight.” This caused a cut requiring three staples. Schriver pinned defendant to the ground until sheriffs arrived, at which point defendant, who appeared to be drunk, called everyone “cop fuckers.” Schriver, like Van Meter, was a nearly bald correctional officer at High Desert State Prison, but he had not known that Van Meter had had an incident with defendant and did not speak to him about it.
Defendant testified he had not been hiding in the bushes, but merely “crouching” to fix the straps of his sandals. He claimed Schriver was the aggressor and grabbed him before he struck Schriver. He admitted he had been drinking beer and “had a good buzz going[,]” but denied being “stumbling drunk[.]”
The jury convicted defendant as charged.
DISCUSSION
I. Cost of Presentence Report
The Attorney General concedes that because Lassen County has not adopted an enabling ordinance as called for by statute, the trial court should not have ordered defendant to pay $330 for the presentence investigation and report. For purposes of this appeal we accept the concession and strike the fee. (See Pen. Code, § 1203.1b, subd. (i) [“This section shall be operative in a county upon the adoption of an ordinance to that effect by the board of supervisors”].)
II. Uncharged Conduct
Defendant claims the trial court should not have admitted into evidence Schriver’s testimony. We disagree.
First, defendant has forfeited his claims of error, raised under various Evidence Code sections, because he failed to interpose any objections to this evidence at trial. (Evid. Code, § 353; see People v. Riel (2000) 22 Cal.4th 1153, 1185; People v. Morris (1991) 53 Cal.3d 152, 187-188.)
Second, defendant’s fallback claim that trial counsel must have been incompetent lacks merit. To prevail in such a claim defendant must show his attorney acted below the standards of professional competence and there is a reasonable probability he would have obtained a more favorable result in the absence of counsel’s failings. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) But where the record does not show why counsel acted or failed to act in a certain way, the issue is more properly raised by way of habeas corpus, where the facts about counsel’s decision can be determined. (People v. Pope (1979) 23 Cal.3d 412, 426, clarified on another point in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Finally, “Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence.” (People v. Freeman (1994) 8 Cal.4th 450, 490-491; see People v. Frierson (1979) 25 Cal.3d 142, 158.)
Defendant testified on direct examination that he had not started prior fights. As the parties later put on the record, this opened the door for the People to impeach him with evidence that indeed he had started a prior fight. (See People v. Vidaurri (1980) 103 Cal.App.3d 450, 459.) Defense counsel could rationally conclude any objections would be futile.
The trial court instructed the jury that the evidence could not be used to show defendant’s poor character or criminal disposition, but “only for the limited purpose of evaluating the defendant’s testimony.” Defense counsel agreed that the instructions were adequate. We conclude that the evidence was not used as propensity evidence, or to paint defendant as a bad person, it was used to show he lied.
Defendant claims without citation to authority that the instructions failed to “inform the jurors of the purpose for which it might consider the evidence.” Not so: By its terms it limited the evidence to use for “evaluating the defendant’s testimony,” that is, determining whether his testimony that he did not start fights was true or false.
Defendant does complain about the predicate point that his trial counsel asked him whether he had been in fights before, thus opening the door. But defendant had the right to take the stand and counsel may have known he was going to say he had never started a fight before, and sought to soften the blow by introducing the point on direct examination, which would be a rational tactical decision. Further, trial counsel may rationally have concluded the crimes were sufficiently similar that the uncharged crime would likely be admitted to show defendant’s intent, that is, to negate the self defense claim. (See Evid. Code, § 1101, subd. (b); People v. Hovarter (2008) 44 Cal.4th 983, 1002-1003 [least degree of similarity necessary to admit uncharged acts to show intent].)
Where the record sheds no light on the reason for counsel’s tactical decisions, we will not presume incompetence of counsel. (See People v. Carter (2005) 36 Cal.4th 1114, 1189.)
III. Sixth Amendment
Defendant contends the upper term sentence violated his Sixth Amendment rights because the trial court partly relied on Schriver’s trial testimony at sentencing.
Except as noted, defendant did not object to the probation report, therefore we presume it is accurate. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) He has a 1991 felony burglary conviction, a 1999 DUI conviction, a 2004 misdemeanor assault with a deadly weapon conviction (the Schriver incident) and a 2004 petty theft conviction, for which he was on probation at the time of the instant offense. He impliedly objected by way of his mitigation statement, which claimed the felony was later reduced to a misdemeanor.
The trial court stated in part it was considering defendant’s “criminal history,” then imposed the upper term “because the defendant has shown himself to be a violent person who poses a danger to society, this being his second conviction involving surprise attack with use of a weapon upon a stranger under a rather bizarre theory of self-defense; his prior performance on a grant of felony probation, and his status as a probationer at the time of this offense.”
The trial court’s partial reliance on defendant’s criminal record defeats defendant’s Sixth Amendment claim. (See People v. Black (2007) 41 Cal.4th 799, 813.)
DISPOSITION
The judgment is modified by striking the $330 fee imposed under Penal Code section 1203.1b and as so modified is affirmed. The trial court is directed to forward a new abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS , Acting P.J. CANTIL-SAKAUYE , J.