Opinion
C081952
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. KENYA MONIQUE ALLEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62131124A)
A jury found defendant Kenya Monique Allen guilty of evading an officer with wanton disregard. On appeal, defendant contends: (1) her trial counsel rendered ineffective assistance by failing to object to incriminating statements and failing to properly argue against admission of her prior convictions; (2) incriminating statements were admitted in violation of her Sixth Amendment right to confrontation; (3) the trial court abused its discretion by admitting her prior convictions as impeachment evidence; and (4) her due process rights were violated due to the cumulative prejudice resulting from these errors. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 2014, the Roseville Police Department radio reported a possible theft in progress at the Galleria Mall. Information over the radio stated the suspect was seen getting into a gold-colored, four-door sedan. Sergeant Darren Kato saw a vehicle matching the description and activated his emergency lights and siren as he made a U-turn. Sergeant Kato saw the suspect vehicle run a red light, cross three lanes of traffic, and accelerate rapidly. Sergeant Kato turned off his lights and siren and proceeded to follow the vehicle. Sergeant Kato accelerated to a speed equal to the vehicle, which he estimated to be 90 miles per hour.
Officers John Helliwell and Matt Leatherman saw the vehicle speed in their direction while sitting in two separate cars at an intersection. The vehicle was going much faster than other cars, at an estimated speed of 80 to 90 miles per hour. Officer Helliwell turned on his lights and drove through the intersection in pursuit. Officer Leatherman turned on his lights and siren and followed. After turning at the intersection, Officer Helliwell and Officer Leatherman saw the vehicle turn into a parking lot. With his lights and siren on, Officer Helliwell followed the vehicle through the parking lot, estimating its speed at between 40 to 50 miles per hour. Officer Helliwell eventually lost sight of the vehicle. Officer Leatherman saw the vehicle driving erratically at a speed in excess of 30 to 40 miles per hour through the parking lot. Sergeant Kato blocked an exit to the parking lot and eventually came nose-to-nose with the vehicle, bringing it to a stop. Officers detained defendant and her passenger, Nantise Blackwell.
Upon searching defendant's vehicle, Officer Helliwell found bags lined with foil or duct tape to shield stolen items from setting off security alarms (booster bags). One of the booster bags contained items that appeared to have been stolen from Juicy Couture. Officer Helliwell also discovered 23 pairs of women's underwear in a Victoria's Secret bag.
Officer Helliwell advised Blackwell of her Miranda rights and interviewed her. Blackwell said she came to the mall to steal because she needed money to pay bills. She admitted she stole from Juicy Couture and tried stealing sunglasses but was caught. She said "all the items in [defendant's] car were already there when she got into the car" and claimed she did not "know anything about the booster bags and nothing about any other property in the car" except for the items taken from Juicy Couture. Blackwell did not mention anything about Victoria's Secret.
Miranda v. Arizona (1966) 384 U.S. 436 .
Officer Leatherman advised defendant of her Miranda rights and interviewed her. Defendant told Officer Leatherman she was sorry for the way she was driving. She also told him she was praying she could get away from the police. At trial, Officer Leatherman also testified defendant admitted to stealing underwear from Victoria's Secret.
Defendant was charged with willful evasion of an officer and shoplifting from Victoria's Secret (and two other charges that were dismissed before trial).
Prior to trial, defendant's trial counsel moved in limine for an order requesting that defendant's testimony not be subject to impeachment by her prior convictions. Trial counsel outlined four factors set out in People v. Beagle (1972) 6 Cal.3d 441 to guide the trial court in deciding whether to allow a defendant to be impeached with a prior conviction: (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was for the same or substantially similar conduct for which the accused is on trial; and (4) the effect the admission would have on the defendant's desire to testify. Trial counsel argued defendant's prior convictions should not be admitted under Evidence Code section 352 because they were prejudicial and possessed no probative value. Trial counsel also pointed to People v. Terry (1974) 38 Cal.App.3d 432, which limits the examiner in attacking a witness's credibility to questions regarding the following information: (1) the name of the felony, (2) the general nature or elements of the felony, (3) the date of conviction, and (4) the place of conviction.
The prosecutor moved to introduce two of defendant's prior convictions as impeachment evidence on the grounds they were crimes of moral turpitude. One was defendant's 2004 misdemeanor conviction for grand theft. The other was defendant's 2006 felony conviction for assault with a deadly weapon, after which, defendant was sent to prison until 2011 and on parole until 2013.
The trial court ruled defendant's 2006 felony conviction and 2004 misdemeanor conduct were admissible; however, evidence of her 2004 misdemeanor conviction was inadmissible hearsay. The trial court found both of defendant's prior convictions involved crimes of moral turpitude and were relevant to her credibility as a witness. The trial court also found the probative value of defendant's prior convictions was not substantially outweighed by the danger of undue prejudice.
During trial, defendant's trial counsel moved to introduce a portion of Blackwell's statement to Officer Helliwell in which Blackwell admitted she went to the mall to steal and admitted stealing from Juicy Couture. Trial counsel asserted the statement was hearsay but should be admitted as a statement against penal interest of an unavailable witness. Trial counsel believed this statement would tend to show defendant did not shoplift from Victoria's Secret. The prosecutor opposed the motion, arguing the statement lacked trustworthiness. The prosecutor also argued if Blackwell's statement were to be admitted, the entire statement should be admitted under Evidence Code section 356. Defendant's trial counsel argued the rest of the statement should not be admitted because it was not against penal interest. The trial court found Blackwell was unavailable and her statement admitting to stealing was trustworthy, relevant, and against penal interest. The trial court also found Blackwell's statement should be put into context and admitted her entire statement except for two sentences relating to defendant's driving and a medication prescription.
Defendant testified she gave Blackwell a ride to the mall but did not go there to steal anything. According to defendant, she did not go into the mall and never entered Victoria's Secret. After she picked Blackwell up, Blackwell eventually told defendant she was caught trying to steal from a sunglasses store. Defendant testified she pulled into the parking lot because she wanted Blackwell to get out of her car and then drove around the parking lot while arguing with Blackwell. Defendant also testified she did not drive fast or erratically and did not see police lights or hear sirens until she was pulled over. Defendant denied being advised of her Miranda rights. She also denied admitting she stole from Victoria's Secret and telling an officer she was sorry for running from police. Defendant claimed she knew nothing of the stolen underwear in her car and denied possessing the booster bags.
On October 30, 2015, a jury found defendant guilty of evading an officer, but not guilty of shoplifting. This timely appeal followed.
DISCUSSION
I
Defendant's Trial Counsel Was Not Ineffective
Defendant contends her trial counsel rendered ineffective assistance of counsel by introducing incriminating statements made by Blackwell and then failing to object on proper grounds to admission of these statements. Defendant further contends her trial counsel was ineffective for failing to argue against admission of the statements and failing to request sanitization of her prior convictions as impeachment evidence. We disagree.
To establish a claim of ineffective assistance of counsel, a defendant must prove: (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficiency resulted in prejudice to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) "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. Williams (1997) 16 Cal.4th 153, 215.) An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687 .)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.) " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.] [¶] In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
A
Admission Of Blackwell's Statements
Defendant's trial counsel moved to introduce the portions of Blackwell's statements to Officer Helliwell in which Blackwell admitted to stealing Juicy Couture items and admitted she went to the mall to steal so she could pay her bills. The trial court admitted Blackwell's entire statement pursuant to Evidence Code section 356, with the exception of the portion regarding defendant's driving and possessing a prescription medication. This included Blackwell's statement that "all the items in the car were already there when she got into the car" and her claim she did not "know anything about the booster bags and nothing about any other property in the car."
Evidence Code section 356 provides as follows: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Defendant argues her trial counsel should have recognized Evidence Code section 356 would permit admission of Blackwell's entire statement once a portion of the statement was admitted. Defendant also argues her trial counsel should have objected on the grounds that introduction of Blackwell's statements violated the confrontation clause of the Sixth Amendment. If successful, this would have excluded the entirety of Blackwell's statement to Officer Helliwell. According to defendant, it is reasonably probable she would not have been found guilty of evading officers had Blackwell's entire statement been excluded.
Under the confrontation clause of the Sixth Amendment, testimonial statements of witnesses absent from trial are "admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177, 197].)
We find no merit in defendant's arguments. First, we accord great deference to trial counsel's tactical decisions. (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.) Defendant's trial counsel made a tactical decision in seeking to admit Blackwell's admission of shoplifting to Officer Helliwell, believing Blackwell's admission of guilt would reduce defendant's culpability for shoplifting. In fact, the jury found defendant not guilty of shoplifting. Under these circumstances, trial counsel's decision to seek admission of Blackwell's statement, rather than objecting to its admission on confrontation clause grounds, did not fall below an objective standard of reasonableness. (See People v. Kelly (1992) 1 Cal.4th 495, 540 ["An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel"].)
Second, this alleged deficiency did not result in prejudice to defendant. The jury found defendant not guilty of shoplifting despite hearing evidence that might have supported a guilty verdict on that charge. This demonstrates that Blackwell's statement may have played a role in acquitting defendant of shoplifting. Moreover, nothing in the admitted portions of Blackwell's statement shed any light on defendant's culpability in evading officers, and thus, there is no reason to believe Blackwell's statement had anything to do with the jury finding defendant guilty of the evading charge. As a result, it is not reasonably probable defendant's outcome at trial would have been more favorable had Blackwell's statement been excluded altogether.
Officer Leatherman testified defendant admitted to stealing from Victoria's Secret; Officer Helliwell found 23 pairs of underwear in a Victoria's Secret bag upon searching defendant's vehicle; and Officer Helliwell testified Blackwell admitted to stealing from Juicy Couture and attempted stealing sunglasses but did not mention anything about Victoria's Secret.
B
Failure To Properly Argue Against Admission Of Defendant's Prior Convictions
We also reject defendant's contention that her trial counsel rendered ineffective assistance of counsel by failing to properly argue against admission of defendant's prior convictions. Defendant also claims her trial counsel should have requested sanitization of her prior convictions, argued the convictions were remote, and raised Evidence Code section 352 on grounds that unsanitized prior convictions were more prejudicial than probative.
Defendant also claims her trial counsel failed to secure the trial court's ruling on the record. Defendant cites relevant law but does not cite to the record where this occurred or provide further detail on this alleged failure by trial counsel.
Defendant is unable to show trial counsel's representation fell below an objective standard of reasonableness for a number of reasons. Defendant first claims her trial counsel failed to request sanitization. Defendant's trial counsel did, however, request limiting the questions related to defendant's prior convictions to: (1) the name of the felony, (2) the general nature or elements of the felony, (3) the date of conviction; and (4) the place of conviction. (See People v. Terry, supra, 38 Cal.App.3d at p. 446.) Defendant broadly contends trial counsel should have requested sanitization but does not suggest how her prior convictions could have been further sanitized without being excluded completely.
Defendant also claims her trial counsel failed to argue her prior convictions were remote in time. Defendant's trial counsel did, however, point to factors from Beagle the trial court should consider in determining whether defendant's prior convictions should be admitted as impeachment evidence. Among these factors was whether defendant's prior convictions were near or remote in time. There was no need for trial counsel to further argue this point because the trial court was fully aware of the amount of time between defendant's prior convictions and the conduct for which she was on trial. Further, defendant's 2004 and 2006 convictions were not remote, particularly given the fact that she was either in prison or on parole from 2006 through 2013. It could not be successfully argued that her prior criminal conduct was attenuated from her current conduct; thus any claim of remoteness had a very low probability of success.
Finally, defendant claims her trial counsel did not raise Evidence Code section 352 and assert that defendant's unsanitized prior convictions were more prejudicial than probative. This claim is factually inaccurate. Defendant's trial counsel moved in limine to exclude defendant's prior convictions. In doing so, trial counsel raised Evidence Code section 352, pointing out the trial court had the discretion to limit the number of prior convictions admitted. Trial counsel asserted defendant's felony conviction was "clearly prejudicial and [wa]s not probative and should, therefore, be made inadmissible." Even assessed in the harsh light of hindsight, we cannot conclude defendant's trial counsel's conduct fell below an objective standard of reasonableness.
Additionally, defendant is unable to show any prejudice resulting from her trial counsel's alleged failures in preventing her impeachment. The jury found defendant not guilty of shoplifting even though her only defense to that charge was her own testimony. To reach that verdict, the jury would have had to believe that at least a portion of defendant's testimony raised a reasonable doubt despite the admission of her prior convictions. Thus, there is no reason to believe that defendant's credibility was the underlying reason the jury found her guilty of evading the officers. Rather, the body of evidence was likely the primary cause, as the testimony of three officers supported the jury's finding of guilt. As such, it is not reasonably probable the outcome would have been more favorable to defendant if the jury had been unaware of her prior convictions.
Because defendant has not established either requirement necessary to prevail on a claim of ineffective assistance of counsel, her claim is without merit.
II
Defendant Forfeited Her Claim That Admission Of Blackwell's
Statements Violated Her Sixth Amendment Right To Confrontation
Defendant claims Blackwell's statements were admitted in violation of her Sixth Amendment right to confrontation. We need not reach the merits of this claim because it has been forfeited.
A Sixth Amendment claim is not preserved for review on appeal unless there is a timely objection at trial on that ground. (People v. Roldan (2005) 35 Cal.4th 646, 736; see also People v. Alvarez (1996) 14 Cal.4th 155, 186 [the defendant did not preserve his claim for review because "[t]here was neither a 'specific' nor 'timely' objection below predicated on the Sixth Amendment's confrontation clause"].) Here, defendant's trial counsel objected to the inclusion of Blackwell's entire statement, but only on the ground it was not against penal interest. Trial counsel did not make a specific or timely objection predicated on the Sixth Amendment's confrontation clause. As such, defendant has not preserved this claim for review on appeal.
Moreover, our Supreme Court has held that a defendant whose conduct led the trial court to err cannot assert the error on appeal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Here, defendant's trial counsel moved to introduce a portion of Blackwell's statement, believing it would tend to show defendant did not shoplift from Victoria's Secret. Defendant cannot now assert that the trial court erred in admitting Blackwell's statement on the grounds it violated her Sixth Amendment right to confrontation because defendant invited any such error by seeking admission of the statement. Accordingly, defendant has forfeited her right to raise this argument on appeal.
III
The Trial Court Did Not Abuse Its Discretion In Admitting
Defendant's Prior Convictions As Impeachment Evidence
Defendant contends the trial court abused its discretion in admitting her prior convictions as impeachment evidence. Because we have concluded no prejudice resulted from admitting defendant's prior convictions, we need not decide whether the trial court abused its discretion in doing so.
Defendant also asserts the cumulative prejudice of the alleged errors made by her trial counsel and the trial court resulted in a deprivation of her due process rights. As we have explained, nothing in the record demonstrates that there have been any errors or resulting prejudice. Accordingly, defendant's cumulative prejudice argument is without merit. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Duarte, J.