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People v. Adame

California Court of Appeals, Second District, Fifth Division
Feb 16, 2011
No. B224651 (Cal. Ct. App. Feb. 16, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA089175 George Genesta, Judge.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.


ARMSTRONG, Acting P. J.

Appellant Anthony Adame was convicted, following a jury trial, of one count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) and one count of attempted voluntary manslaughter in violation of sections 664 and 192, a lesser offense of the charged offense of attempted murder. The victim in both offenses was Frank Arrieta. The jury found true the allegation that appellant personally inflicted great bodily injury in the commission of both crimes within the meaning of section 12022.7, subdivision (a). The trial court found true the allegations that appellant had suffered a prior serious felony conviction within the meaning of sections 667 and 1170.12 and had served a prior prison term within the meaning of section 667.5, subdivision (b).

All further statutory references are to the Penal Code unless otherwise indicated.

The trial court sentenced appellant to a total of 14 years in state prison, consisting of the mid-term of 3 years for the attempted manslaughter conviction, doubled to 6 years pursuant to the "Three Strikes" law, plus 5 years for the prior serious felony conviction within the meaning of section 667, subdivision (a), plus 3 years for the great bodily injury finding pursuant to section 12022.7. The trial court dismissed the prison term allegation in the interests of justice. Sentence on the assault conviction was stayed pursuant to section 654.

Appellant appeals from the judgment of conviction, contending that his counsel was ineffective in failing to object to the admission of a prior incident of violence pursuant to Evidence Code section 1101 and to the admission that appellant referred to himself as "Monstro." We affirm the judgment of conviction.

Facts

In April 2009, Lillian Arrieta began dating appellant. At the time, she was separated from her husband, Frank Arrieta. Lillian lived in a trailer park in El Monte and Frank lived in Baldwin Park. Appellant sometimes stayed over at Lillian's residence and occasionally left things there.

On September 14, 2009, appellant came to Lillian's trailer while Frank was there. Frank told appellant to get out and chased him off.

In October 2009, appellant approached Lillian and Frank as they were walking down the street together. Appellant said that he was going to get Frank and was "gonna kill" him. Frank laughed.

In mid-December 2009, Lillian and appellant broke up. Lillian told appellant to leave and take all his possessions with him.

About 9:40 p.m. on January 1, 2010, Lillian and Frank were watching television in her trailer when they heard a banging on the door. Lillian asked who was there and appellant replied: "Monstro, Lomas." Lillian told appellant to go away or she would call the police. She did not want to open the door because Frank was in the trailer and it sounded to her like appellant was not in a good mood. She told Frank to be quiet.

Frank ignored Lillian's admonition. He said: "Get the 'F' out of here." Appellant pounded on the door. Frank said that he was going to call the police. Appellant pounded some more and managed to open the door. Frank saw appellant reach behind and pull out a knife. Lillian saw the tip of something metal in appellant's hand as he entered the trailer.

Lillian ran into the bathroom and locked the door. She heard a lot of pounding and felt the trailer moving. The trailer was about 6 or 7 feet wide and 25 to 27 feet long.

Frank grabbed appellant's hand as appellant charged into the trailer. The two men spun around. Appellant stabbed Frank at the temple, below the collarbone and in the stomach. Frank dug his thumb into appellant's eye. Appellant ran out of the trailer. He yelled that he was going to kill Frank and he was going to get Frank's family.

Lillian came out of the bathroom, saw Frank bleeding and called 911. Frank's blood was on the floor of the trailer, on sheets in the trailer and on a sweater. Lillian thought appellant had cut Frank's neck and so she wrapped it up.

Paramedics came to the trailer and took Frank to the hospital. Frank underwent surgery for the stab wounds to his stomach. He was in the hospital for a week.

Sheriff's deputies also came to the trailer. Lillian gave them a description of appellant. Appellant's false tooth was found in the trailer.

Sheriff's deputies detained appellant in Rosemead, one to two miles from Lillian's trailer. He had bloodstains on his forehead, the bridge of his nose and all over his clothing and hands. He did not appear to have any cuts. Appellant told deputies that he had had a nosebleed, but the deputies did not see any blood in his nostrils. Appellant said that he was coming from his father's home in Monterey Park. When told that he was being arrested for assault with a deadly weapon, he claimed that he did not know anything about an assault.

The People offered evidence of a 2008 incident in which appellant pled guilty to assault with a deadly weapon on Gilbert Amabisca. In that incident, Amabisca was sitting in his truck with his girlfriend about 8:30 p.m. The truck was in the driveway of his girlfriend's sister. Appellant walked up and slashed the truck's tires. Amabisca got out of the truck to confront appellant. Appellant stabbed Amabisca twice and punctured his lungs. Amabisca spent two weeks in the hospital. Two days earlier, appellant had told Amabisca that he was going to stab him.

Appellant testified on his own behalf at trial. He claimed that at some point in 2009, appellant was talking to Lillian and Frank became upset and violent. Appellant told Lillian that he would come back later because he did not want a confrontation with Frank. Appellant claimed that he and Lillian did not break up in December 2009.

On January 1, 2010, appellant went to Lillian's trailer to visit. He announced: "It's Tony." He did not pound on the door. Frank yelled: "What the hell do you want? Get the F'en out of here." Appellant did not set foot in the trailer. Frank came at him with a knife and gouged his eye. Appellant tried to block the knife, but did not punch Frank. When appellant was stopped by the police, he told them that he had been in a confrontation with his girlfriend's husband.

Appellant also testified about the 2008 incident with Amabisca. Appellant said that as he was walking down the street, Amabisca swung a pipe at appellant. Appellant believed that Amabisca did so because Amabisca was arguing with his girlfriend and did not want appellant around. On cross-examination, appellant acknowledged that he did stab Amabisca.

Appellant also offered the testimony of Deputy Henckel that when he arrived at Lillian's trailer, Frank told the deputy that he did not realize that he had been stabbed until he saw the blood and that he had punched appellant five to ten times in self-defense. Deputy Henckel did not see any blood stains outside the trailer. There were blood stains inside the trailer.

It was stipulated that Amabisca told Officer Dean Zehms in 2008 that appellant, whom he knew as "Monstro, " walked up to Amabisca's vehicle, slashed the tires and then stabbed Amabisca.

Discussion

1. Prior incident

Appellant contends that he received ineffective assistance of counsel because his trial counsel failed to object to a prior incident on relevancy grounds. Counsel argued only that the incident should be excluded under Evidence Code section 352 because it was more prejudicial than probative. This objection was overruled.

Appellant has the burden of proving ineffective assistance of counsel. (People v.Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)

"When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for the counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)

Evidence of an uncharged offense may be admissible to prove identity, common plan or intent that if offense is sufficiently similar to the charged offense. (People v. Carter (2005) 36 Cal.4th 1114, 1147; see Evid. Code, § 1101, subd. (b).) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

Here, there does not seem to be a satisfactory explanation for counsel's failure to argue that the prior incident was not relevant. The People argued that the two incidents were committed pursuant to a common scheme and design. It is certainly questionable whether there were sufficient similarities between the two incidents to show a common plan or scheme. The two incidents took place 18 months apart and had little in common except that in both cases appellant threatened to stab a person, then later did stab that person. The motives were different, the locations were dissimilar and the areas of the body stabbed were different.

The victim in the prior incident was either a coworker or a drinking buddy of appellant. The victim believed that appellant assaulted him because appellant was angry that the victim had earlier told him to get out of his truck. The stabbing took place when the victim was sitting in his truck in a driveway. Appellant slashed the truck tires and then stabbed the victim in the chest when he got out of the truck. Appellant contended that he happened upon the victim when he was on his way home from the store. The victim in this case was the husband of someone appellant had been romantically involved with and appears to have been motivated by jealousy. Appellant went to the victim's home and forced his way inside. He stabbed the victim in the stomach area.

We will assume for the sake of argument that the prior incident should not have been admitted. We see no reasonable probability that appellant would have received a more favorable outcome if his counsel had objected to the prior incident on relevancy grounds and had succeeded in persuading the court to exclude the evidence.

The evidence against appellant was very strong. The victim knew appellant and so there was no issue of mistaken identification. The stabbing took place in the victim's trailer, and there was blood all over the inside of the trailer. Appellant's false tooth was found in the trailer. When appellant was stopped by deputies a mile or two from the trailer, he had blood on his face, hands and clothes. Deputies did not see any cuts on appellant. Appellant claimed that he had suffered a nosebleed, but deputies did not see any blood in his nostrils. When appellant was told that he was being arrested for assault, he denied knowing anything about the assault and said he was coming from his father's house in Monterey Park. At trial, he contradicted these statements and said that he went to the trailer, but did not go inside. He claimed that Frank came at him with a knife and gouged him in the eye. There were no bloodstains outside the trailer.

We do not agree with appellant that the case against him was weak because there were inconsistencies between Frank's account of events and Lillian's account, and between their testimony and their statements to Deputy Henckel. These inconsistencies, to the extent that they exist, are minor and would not have supported a self-defense claim by appellant.

For example, appellant contends that Lillian could not have seen a metal object in his hand, as she claims, because she claimed that she went to the bathroom as soon as appellant entered the trailer. Appellant contends that Frank's testimony was that appellant did not pull out a knife until after appellant fell backwards when he opened the trailer door. We see no such inconsistency. It appears from Frank's testimony that appellant fell backward before entering the trailer. Appellant then pulled out the knife and entered the trailer. Lillian saw the metal object as she was at the bathroom door.

2. Evidence that appellant identified himself as "Monstro"

When Lillian asked who was at the door, appellant replied: "Monstro, Lomas." Appellant's counsel sought to have this statement excluded. The trial court found it was relevant for identification and that the probative value outweighed any prejudice. Appellant now contends that his counsel should have suggested that the parties stipulate that appellant identified himself (without revealing precisely what he said) when he came to the victim's trailer, and that his failure to make this suggestion amounted to ineffective assistance of counsel.

In order to show ineffective assistance of counsel, appellant must show that there could be no satisfactory explanation for counsel's conduct. Here, appellant himself might not have been willing to stipulate that he identified himself at the door, and counsel might have been acting in accordance with his client's wishes.

Assuming for the sake of argument that appellant's counsel should have offered such a stipulation, we see no reasonable probability that appellant would have received a more favorable outcome if counsel had offered such a stipulation and it had been accepted.

As we discuss in section 1, ante, the evidence against appellant was very strong. Although Monstro or Monster was apparently appellant's gang nickname, there was nothing to alert the jury to that fact. We see no reasonable probability that the nickname influenced the jury.

3. Cumulative error

Appellant contends that even if the errors considered independently were not prejudicial, their cumulative effect was. We do not agree.

The instances of ineffective assistance identified were at best minor. Even considered together, we see no reasonable probability or possibility that they affected the trial or that appellant would have received a more favorable outcome if counsel had behaved in the manner specified by appellant on appeal.

Disposition

The judgment is affirmed.

We concur: MOSK, J., KRIEGLER, J.


Summaries of

People v. Adame

California Court of Appeals, Second District, Fifth Division
Feb 16, 2011
No. B224651 (Cal. Ct. App. Feb. 16, 2011)
Case details for

People v. Adame

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY R. ADAME, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 16, 2011

Citations

No. B224651 (Cal. Ct. App. Feb. 16, 2011)