Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF120490A, Arthur E. Wallace, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
CORNELL, J.
A jury convicted Juan Luis Morales Cantu of attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon (§ 245, subd. (a)(1)), making a criminal threat (§ 422), and driving a motor vehicle without a driver’s license (Veh. Code, § 12500, subd. (a)). The felony charges arose from an attack on Danny Rios. Cantu argues (1) the prosecutor committed misconduct at trial; (2) the trial court erroneously excluded evidence; (3) his counsel was ineffective; and (4) the trial court erroneously instructed the jury. We conclude that any errors that occurred were not prejudicial and affirm the judgment.
This is the name by which Cantu identified himself at trial. We will refer to him as Juan Luis Cantu, as this is the name used throughout the record and in particular in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Cantu is married to Rios’s ex-wife, Evelyn Cantu. Rios and Evelyn have three children together, N.R., A.R., and C.R. Rios met Cantu when Cantu started dating Evelyn. Initially, Cantu was friendly and treated Evelyn and the children well. After Cantu and Evelyn married, Cantu’s relationship with Rios changed. Cantu told Rios to speak with him only and not to Evelyn. If Rios spoke to Evelyn without first obtaining permission from Cantu, Cantu would become upset and sometimes threaten Rios.
We will refer to Evelyn Cantu by her first name, not out of disrespect but to avoid any confusion to the reader.
On one occasion Cantu sought out Rios when Rios was at Lance’s Haven, a drug rehabilitation program. Cantu confronted Rios about speaking with Evelyn without Cantu’s permission. Cantu then hit Rios in the face.
The People attempted to establish the motive for the more recent attack by eliciting testimony about the events that occurred three days before the attack. On that day, Rios received a phone call from his son, A.R., asking to speak with Rios’s daughter, C.R. When Rios told A.R. that C.R. was not at the house, A.R. stated C.R. had left that morning saying she was going to spend the weekend at Rios’s house. C.R. never discussed the issue with Rios. Rios waited, hoping that C.R. would appear. C.R. had not arrived at Rios’s house by late afternoon, so Rios called A.R. and confirmed that C.R. had not returned to the Cantu residence. Later in the evening, Rios again called A.R. When A.R. said he had not heard from C.R., Rios asked to speak to Cantu.
Cantu and Rios worked together attempting to locate C.R. When they concluded they did not know where she was, Rios said he was going to call the police department because she was missing or had run away. Rios told Cantu he would send the police to the Cantu residence because that was where C.R. lived. Cantu became upset and told Rios not to call the police because he knew where she was located. Cantu left the Cantu residence when Rios insisted on calling the police. When Rios called back, he spoke with Evelyn. C.R. eventually was located at her boyfriend’s house.
On the date of the attack, Rios was in the front yard of his house talking with a neighbor when Cantu parked a car he was driving in front of the house. Cantu was walking towards Rios when Rios first saw him. Rios asked why Cantu was at his house. Cantu responded, “I got you now.” Rios asked Cantu to leave and began walking towards the front door of his house. Rios also asked his girlfriend, who was inside the house, to call the sheriff’s office. When Rios reached for the knob to the front door, Cantu came up to him and said he was going to kill him and stab him. Rios felt like he had been punched by Cantu. When Rios turned around he saw Cantu with a knife and some blood on the knife. Rios yelled for someone to call the police. Cantu continued stabbing Rios, even while Rios’s girlfriend was calling the sheriff’s department. Rios jumped over a brick retaining wall and fell down. Cantu followed and continued to stab at Rios. Cantu kept saying, “I’m going to kill you.” The attack was very quick, no more than two minutes in length. Cantu fled when he heard the sheriff’s department was responding to the scene. Rios saw another tall Hispanic male enter Cantu’s vehicle.
Rios was taken by ambulance to the hospital where he received treatment. The hospital performed a CAT scan to check for internal injuries and then closed the wounds with 13 staples. Rios was in the hospital for three and one-half days.
N.R. confirmed that Cantu would become angry when Evelyn spoke directly to Rios. N.R. also confirmed that Cantu threatened Rios on occasion. Cantu did not want Evelyn and Rios to have any contact whatsoever.
Shortly after the attack, Deputy Sheriff Michael Steed interviewed Michael Alvarez, who was the occupant in Cantu’s vehicle. Alvarez stated that Cantu, his cousin, had stopped his vehicle in a residential neighborhood, exited the vehicle, and approached a man Alvarez did not know. The two men began arguing and then someone shouted, “He stabbed me.” Cantu then ran back to the vehicle and drove away.
Steed also interviewed Cantu. Cantu stated he had driven Alvarez to the store to buy cigarettes, and on the way home they had been stopped by the police. When asked if he knew Rios, Cantu asked, “What does that have to do with anything.” The officers did not find a knife when they searched Cantu’s vehicle.
Rios’s girlfriend at the time of the attack, Victoria Delarosa, confirmed that Rios was afraid of Cantu. At trial Delarosa denied seeing Cantu stab Rios. Steed testified, however, that when he interviewed Delarosa at the time of the incident, she stated she had observed Cantu stab Rios four to five times with a knife.
Vito Giuntoli confirmed that Cantu attacked Rios at Lance’s Haven a few years before the attack in question.
The People played a recording of a conversation between Cantu, Evelyn, and Alvarez. In the conversation, Cantu appears to be attempting to convince Alvarez to deny that Cantu had stopped at Rios’s residence.
Alvarez testified he was in the car when Cantu stopped at Rios’s house and the confrontation occurred. He did not see the beginning of the confrontation, but he did see Rios and Cantu struggling with each other. He did not see any blood on Cantu, nor did he see Cantu with a knife. Alvarez also confirmed that Cantu asked him to lie to Cantu’s parole officer in the recorded conversation.
Cantu testified in his defense. He admitted that previously there was a fight with Rios at Lance’s Haven. He went to Rios’s house on the day of the more recent attack to talk with him about C.R.’s behavior. Rios was in the front yard. As Cantu approached Rios, Rios pulled out a knife and said, “I got you now, motherfucker.” Cantu grabbed Rios’s wrist and the two started to struggle. They fell into the flower bed. Rios yelled, “You stabbed me.” Cantu got scared and ran to his truck and left. Cantu explained that when he was stopped by the police he did not want to discuss the matter without his attorney because he was on parole and he did not want to get into trouble.
Cantu was charged with attempted murder (§§ 187, 664), assault with a deadly weapon (§ 245, subd. (a)(1)), making criminal threats (§ 422), and driving a vehicle while he was not licensed (Veh. Code, § 12500, subd. (a)). In addition, the information alleged that Cantu had suffered two prior convictions for which he had served a prison term within the meaning of section 667.5, subdivision (b). Finally, the information alleged that in committing the assault, Cantu caused great bodily injury within the meaning of section 12022.7, subdivision (a).
The jury convicted Cantu of all charges and found the great bodily injury allegation true. The People dismissed one of the section 667.5, subdivision (b) prior conviction allegations, and Cantu admitted the other allegation. Cantu was sentenced to an unstayed term of 10 years in prison.
DISCUSSION
I. Prosecutorial Misconduct
Rios testified that C.R. disappeared three days before he was attacked by Cantu. He and Cantu attempted to locate C.R. When their attempts failed, Rios told Cantu he was going to call the police and report C.R. missing. Since C.R. lived at the Cantu residence, Rios told Cantu he would tell the officers to go to the Cantu residence. Cantu told Rios not to call the police, but Rios did so anyway. After speaking with Rios, Cantu left the Cantu residence. Rios spoke with Evelyn when he called back a short while later, which typically caused Cantu to become upset. After Rios testified to the foregoing, the prosecutor pursued the following line of questioning:
“[PROSECUTOR:] Did Mr. Cantu tell you that he didn’t want you to call the Bakersfield Police Department?
“[RIOS:] Well, in a way he did. He said, ‘We don’t need to go that route. Why we got to call the police department? I’ll find her. I know where she’s at.’ [¶] I go, ‘I’ve been calling all day long. Why now? It’s already 10 o’clock.’
“[PROSECUTOR:] And is there a reason -- and did Mr. Cantu tell you the reason why he didn’t want you to call the Bakersfield Police Department?
“[RIOS:] Oh, he didn’t have to. I knew why.
“[PROSECUTOR:] Do you know, based on your knowledge, if [Mr. Cantu] was supposed to be at the [Cantu residence]?
“[RIOS:] Mr. Juan Cantu had beat up my 15-year-old son earlier that year.
“[DEFENSE COUNSEL]: Objection, your Honor. Outside the scope of the motions in limine.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: Ask that it be stricken and the jury admonished, please.
“THE COURT: The remark of the witness is stricken.
“[PROSECUTOR:] So based on your knowledge, you know that there was a restraining order or a stay-away order?
“[DEFENSE COUNSEL]: Objection. Outside the scope of the motions in limine. Prosecutorial misconduct. Object on the grounds of due process for Mr. Cantu.
“THE COURT: Rephrase the question, Ms. [Prosecutor]. Let’s not get into any particular reason. If you’ve got some information -- [¶]
“[PROSECUTOR:] Mr. Cantu -- so based on your knowledge, you know that Mr. Cantu was not legally supposed to be at that house?
“[DEFENSE COUNSEL]: Same objection, your Honor.
“THE COURT: Sustained. [¶]
“[PROSECUTOR:] Mr. Cantu -- [¶] … [¶]
“[PROSECUTOR:] -- was not supposed to be
“THE COURT: Sustained. Don’t ask the same question again, Ms. [Prosecutor], that was already sustained, please. [¶]
“[PROSECUTOR:] Mr. Rios, so based on your knowledge, you know that [Mr. Cantu] was upset that you were going to
“THE COURT: Sustained if you’re getting into that same situation. Let’s go on to something else, please.
“[PROSECUTOR:] No, your Honor. It was a different situation. I’ll rephrase.
“THE COURT: All right. Go on to something else. [¶]
“[PROSECUTOR:] Mr. Rios, based on your knowledge, [Mr. Cantu] was upset.
“[RIOS:] Yes.”
The People broached this topic in an attempt to establish Cantu’s motive for attacking Rios. It is apparent from these proceedings that Rios was going to testify that a temporary restraining order had been issued requiring Cantu to stay away from the Cantu residence as a result of an altercation between Cantu and Rios’s son, who lived at the Cantu residence. The prosecutor was attempting to elicit, at a minimum, that Cantu legally was prevented from being at the Cantu residence. The parties do not dispute that this was the evidence sought by the prosecutor.
The principles governing prosecutorial misconduct are well established. “‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citations.] [¶] ‘A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 965-966.)
Cantu argues the prosecutor committed misconduct in asking these questions because she was attempting to elicit evidence the trial court had ruled before trial was inadmissible. A prosecutor commits misconduct if he or she elicits inadmissible evidence in violation of a court order. (People v. Silva (2001) 25 Cal.4th 345, 373; People v. Price (1991) 1 Cal.4th 324, 451.) Cantu’s argument fails, however, because the record does not establish that there was a court order precluding the prosecutor’s line of questioning.
We begin with the testimony. It appears the prosecutor was attempting to elicit from Rios that Cantu was not permitted to be at the Cantu residence because of a court order. When Rios answered the first quoted question by stating that Cantu assaulted Rios’s son, the answer was not responsive to the prosecutor’s question and properly was stricken from the record. The prosecutor’s remaining questions were directed at eliciting only that a court order existed ordering Cantu to stay away from the Cantu residence.
This topic was relevant to the issues at trial. The prosecution was attempting to establish that Cantu had a motive to attack Rios. Rios’s decision to call the police and send them to the Cantu residence, knowing that Cantu’s presence there violated a court order, could explain Cantu’s anger. Rios’s decision exposed Cantu to arrest and a jail sentence for violating a court order. Rios’s decision also required Cantu to leave the Cantu residence when he apparently did not want to do so. Finally, because Cantu had to leave the Cantu residence, Rios was able to speak directly to Evelyn, which Rios knew angered Cantu. This sequence of events could explain why, three days later, Cantu attacked Rios with a knife.
Since the evidence the prosecutor was attempting to solicit was relevant and would appear to be admissible in the absence of a court order, the issue is whether there was an order precluding the prosecutor from eliciting such testimony. Cantu’s argument is based on the objection his attorney made when the issue was breached by the prosecutor. When Rios testified that Cantu had beaten up his son, trial counsel objected that the answer was “Outside the scope of the motions in limine.” Defense counsel made the same objection when the prosecutor next asked whether Rios had personal knowledge that there was a court order precluding Cantu from being at the Cantu residence. Cantu argues that these two objections establish that the trial court granted a motion in limine precluding any questions on this topic.
Cantu’s argument has two glaring weaknesses. First, he does not, and cannot, cite to any portion of the record that indicates the trial court issued such an order. Second, even if there was a motion in limine on which the trial court had ruled, the scope of the ruling is impossible to fathom from this record.
The record contains two documents to which trial counsel may have been referring. The first document is entitled “People’s Motions In Limine.” In this document the People sought a ruling permitting introduction of some specific items of evidence, such as Cantu’s prior convictions, if he sought to testify. None of the specific items identified by the People related to an attack by Cantu on Rios’s son or to the existence of a court order precluding Cantu from being at the Cantu residence.
The other document is a motion to exclude evidence filed by trial counsel. Although the document was filed as a motion to be heard well before trial, the department that heard the motion ordered the “matter is to be heard at the trial court.” (Capitalization omitted.) In his motion Cantu sought to exclude, among other items of evidence, evidence that “‘There was a court order restricting Juan Cantu from being [at the Cantu residence] because of a prior incident involving him and [A.R.]’”
There are two references to the pretrial motions in the record. The minute order reflecting discussion of the pretrial motions states: “Out of the presence of the jury, court memorializes chamber conference discussion where at court and counsel went over pre-trial motions. After discussion, the only motion of consequence was People’s motion in limine number 5 re impeachment of the defendant, which the court will allow only as to his felony conviction. [¶] Court granted all other motion[s] in limine.” (Capitalization omitted.)
The reporter’s transcript provides the following comment by the trial court: “Before we began the trial, counsel and the Court met in chambers off the record to go over the various matters on a pretrial basis. The People had filed motions in limine, which were discussed. And the motions in limine were -- the only motion that was discussed of any consequence was No. 5 with regard to the impeachment of the defendant should he choose to testify on that. I indicated that I would be allowing the People to use the felony conviction -- the Penal Code [section] 236 conviction that occurred apparently on December 28th, but I would not allow the misdemeanor convictions that are listed in their motion No. 8. And I believe that was the only motion in limine of the People that was subject to any discussion or objection on the part of the Defense. The other motions in limine would be granted.” Defense counsel agreed with the trial court’s statement without any additional comment.
From this record, it does not appear that the document filed by trial counsel was ruled on by the trial court; only the People’s motions in limine were considered. This conclusion is confirmed by the many items of evidence the prosecutor introduced without objection that trial counsel had sought to exclude in his pretrial motion. For example, trial counsel sought to exclude testimony that (1) Cantu’s desire to control Evelyn interfered with contact between Rios and his children; (2) Cantu and Rios had several angry exchanges on the phone; (3) Cantu attacked Rios at Lance’s Haven; (4) Rios’s relationship with Cantu was very confrontational; and (5) Cantu was very aggressive towards Rios. These topics were introduced without objection at trial. Therefore, the trial court’s blanket statement that all other motions in limine were granted could not have been referring to trial counsel’s pretrial filing.
Nor can we conclude, based on trial counsel’s objections, that there was such a court order. It is impossible, on this record, to know to what defense counsel was referring when he made his objections. It is possible there was some type of pretrial ruling, but we can only speculate on what that ruling may have been, or if it even exists. It is Cantu’s responsibility to ensure that an adequate record is made to permit review of the issues on appeal. (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) Failure to provide an adequate record may result in a forfeiture of the issue. (Ibid.) Since we cannot determine if the prosecutor violated a court order without knowing the existence or scope of such an order, Cantu has forfeited this claim.
Even if we could conclude the prosecutor committed misconduct by violating the trial court’s order, reversal is not required under either federal (Chapman v. California (1967) 386 U.S. 18, 24) or state (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)) standards of review because Cantu cannot establish any prejudice from the exchange. Trial counsel’s objection to Rios’s initial statement was sustained and the answer stricken. Rios did not answer any of the remaining questions posed by the prosecutor. The jury was instructed that the attorney’s questions are not evidence, and it must disregard all testimony the trial court orders stricken. Since we presume the jury understood and followed the instructions (People v. Holt (1997) 15 Cal.4th 619, 662 (Holt)), we must presume it disregarded the prosecutor’s questions and Rios’s comment. Moreover, the exchange was short and not referred to in any other portion of the trial.
Finally, the evidence against Cantu was overwhelming. His only defense was his testimony that he went to Rios’s house to talk, and Rios attacked him with a knife. While not impossible, this testimony is improbable. There is no explanation why Rios would be carrying a knife while he was outside speaking to a neighbor before leaving for church, especially since Rios did not know Cantu would appear at his house. Both Rios and Delarosa identified Cantu as the aggressor. Cantu had a history of aggressive behavior towards Rios. Cantu fled the scene and initially denied any involvement to police officers. Finally, Cantu asked Alvarez to commit perjury to provide him with a false alibi. On this record, we conclude that Cantu suffered no prejudice from this exchange.
II. Erroneous Exclusion of Evidence
Cantu called Evelyn to testify in his defense. Trial counsel attempted to elicit testimony from Evelyn that when she was involved with Rios he was violent with her, and she had to obtain a restraining order as a result. The trial court sustained the prosecutor’s objections to these questions. Cantu contends the trial court erred in precluding Evelyn from testifying to these facts.
The trial court has wide discretion when determining whether to admit or exclude evidence. (People v. Lucas (1995) 12 Cal.4th 415, 449.) We review the trial court’s ruling for an abuse of discretion. The trial court abuses its discretion only where it acts arbitrarily, capriciously, or in an obviously absurd manner. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; see People v. Rowland (1992) 4 Cal.4th 238, 264.) Even if the trial court erroneously excludes evidence, we will reverse the judgment only if the error results in a miscarriage of justice. (Cal. Const., art. VI, § 13.)
Evidence Code section 1103, on which trial counsel relied in arguing Evelyn’s testimony was admissible, is an exception to the general rule that evidence of a person’s character, including evidence of specific instances of conduct, is inadmissible to prove the person’s conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1103, subdivision (a)(1) states that in a criminal action evidence of a character or trait of a character of the victim is not excluded by Evidence Code section 1101 if the evidence is “Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” (Id., § 1103, subd. (a)(1).) The defendant may offer an opinion, evidence of reputation, or evidence of specific instances of the victim’s conduct. (Ibid.)
“‘It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.’ [Citations.] Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence. [Citation.] … The admission of such character evidence, however, is not without bounds, but is subject to the dictates of Evidence Code section 352.… [¶] Section 352 directs ‘the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant’s liberty.…’ [Citation.]” (People v. Wright (1985) 39 Cal.3d 576, 587-588.)
In this case, Cantu was attempting to introduce evidence that Rios committed specific acts of violence against Evelyn. Evidence of Rios’s violent conduct was offered to support Cantu’s assertion that he acted in self-defense. The trial court summarily rejected Cantu’s attempts to establish Rios’s violent character. It is unclear if the trial court thought the evidence was improper character evidence or determined the probative value of the evidence was outweighed by its prejudicial effect.
Clearly, the evidence was relevant under Evidence Code section 1103. Moreover, it does not appear the prejudicial effect of the evidence was outweighed by its probative value. Admittedly, the probative value of the evidence was not strong. Apparently, Evelyn would have testified that Rios hit her and choked her during their relationship. This relationship had ended more than four years before the trial, making the evidence somewhat stale. Moreover, since the evidence was limited to domestic violence, it does not necessarily follow that Rios would attack another man.
We are not suggesting that domestic violence is acceptable or excusable, only that one who is violent in the context of a relationship may not be violent in another context.
It appears, however, there would be little prejudicial effect if the evidence were introduced. Neither Rios nor Cantu could be described as paragons of virtue. Rios’s history of drug abuse and abandoning relationships left little room for sympathy. If the jury learned that Rios also had engaged in domestic violence, it would not create the type of prejudice Evidence Code section 352 is designed to prevent. Nonetheless, because of the limited probative value of the evidence, the trial court may have determined its introduction would have resulted in an undue consumption of time as explained below.
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
We need not decide whether the trial court abused its discretion in excluding Evelyn’s proposed testimony, however, because, even if the evidence was erroneously excluded, the error did not result in a miscarriage of justice. A miscarriage of justice occurs when we conclude, after an examination of the entire case, that it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
Cantu was established to be the aggressor in his confrontations with Rios. Cantu attacked Rios with no provocation at Lance’s Haven. While Rios engaged in verbal exchanges with Cantu, it was Cantu who normally initiated such exchanges and who repeatedly threatened Rios. Rios was described as being “a bit of a coward” when it came to Cantu. There also was direct evidence from both Rios and Delarosa establishing Cantu attacked Rios.
Cantu’s actions also point to his guilt. Cantu left the scene immediately after the attack. When stopped by police, Cantu initially denied having any knowledge of the attack and later asked Alvarez to commit perjury to establish that Cantu was not involved in the attack. These are not the actions of a man who merely was defending himself.
Finally, we note that if Cantu had been permitted to introduce evidence that Rios was violent towards Evelyn, the prosecution would have been permitted to introduce evidence of Cantu’s violent character. (Evid. Code, § 1103, subd. (b).) This would have permitted the prosecution to introduce evidence that Cantu attacked Rios’s son and the resulting restraining order. There also may have been additional acts of violence committed by Cantu. Indeed, the trial court may have excluded evidence of Rios’s violent character under Evidence Code section 352 to avoid undue consumption of time in trial because it would have permitted the People to rebut Evelyn’s testimony.
For these reasons, even if Evelyn had been permitted to testify about acts of violence committed by Rios, it is not reasonably probable that Cantu would have obtained a better result.
We also reject the claim that Cantu was precluded from presenting a defense. He was permitted to testify that he acted in self-defense. The exclusion of evidence with the minimal probative value of Evelyn’s proposed testimony did not interfere with this right. (See People v. Frye (1998) 18 Cal.4th 894, 945, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
III. Ineffective Assistance of Counsel
Cantu was interrogated by Steed shortly after he was arrested. Steed testified that he read Cantu his Miranda rights, and Cantu agreed to speak with him. The following exchange occurred next:
Miranda v. Arizona (1966) 384 U.S. 436.
“[PROSECUTOR:] And what happened next?
“[STEED:] I asked Mr. Cantu what happened. He told me that he had driven his cousin Alvarez to a store to buy cigarettes, and on the way home he was stopped by police.
“[PROSECUTOR:] And what happened next?
“[STEED:] I then asked him if he knew a Danny Rios. And he said, ‘What does that have to do with anything?’ [¶] And I then asked him if he had gotten into a fight with Danny Rios, and he said, ‘I want to talk with a lawyer.’”
Steed testified that he ended the interview after this comment. Trial counsel did not object to Steed’s testimony. Cantu argues that Steed’s testimony violated his constitutional rights as set forth in Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), and the failure to object was the result of ineffective assistance of counsel.
In Doyle, the Supreme Court held that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Doyle, supra, 426 U.S. at p. 618.) The People seem to concede that Steed’s remark violated Doyle and its progeny. We need not resolve this issue, but instead proceed directly to the basis of the argument, i.e., the failure to object was the result of ineffective assistance of counsel.
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Cantu cannot meet either prong of the test. There is no explanation in the record to explain why trial counsel did not object to Steed’s testimony, nor was trial counsel asked to explain the lack of objection. Therefore, we will reject the claim of ineffective assistance of counsel unless there could be no satisfactory explanation for the failure to object.
A satisfactory explanation is readily apparent. When Cantu testified, he was asked by trial counsel why he immediately did not explain to the police that he acted in self-defense. Cantu answered, “I didn’t want to get in trouble, sir. I’m on parole. I thought it would be best to have a lawyer with me at that point in time.”
That counsel broached this subject cannot be second-guessed. Once Cantu decided to testify, and his testimony was going to assert he acted in self-defense, trial counsel must have recognized that the jury would wonder why Cantu immediately did not explain to the investigating officers that he acted in self-defense. It was important, therefore, for Cantu to provide an explanation for his silence. His explanation appears as compelling and logical as could be expected under the circumstances.
The decision for Cantu to testify presumably was made before trial started (for he had no other defense without his testimony). When Steed testified, his comment complemented Cantu’s anticipated testimony. Therefore, there was no reason to object. This tactical decision will not be questioned on appeal.
We reject any suggestion that trial counsel asked why Cantu did not tell officers that he was acting in self-defense only because of Steed’s comment. There is nothing in the record to support such speculation. It has long been recognized it is better to pursue an ineffective assistance of counsel claim on a petition for habeas corpus where evidence outside the record can be introduced and an explanation for trial counsel’s conduct, or lack thereof, can be presented. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) If there is any merit to this argument, habeas corpus is the proper method to seek a remedy.
People v. Berryman (1993) 6 Cal.4th 1048, overruled on other grounds in People v. Hill (1998) 17 Cal.4th, 800, 823, fn. 1.
Even if we assume arguendo that counsel was ineffective for failing to object, Cantu cannot establish any prejudice from Steed’s comment. The comment was brief and was not repeated at any other point in the trial. Cantu testified to explain his silence after he was arrested. There is no possibility that had trial counsel objected to Steed’s testimony Cantu would have received a better result.
IV. Jury Instructions
The trial essentially was a question of credibility. Rios claimed he was attacked by Cantu; Cantu asserted he acted in self-defense. While there was some evidence to support both theories, Cantu’s defense relied primarily on his testimony. Therefore, according to Cantu, it was essential the trial court instruct the jury that the testimony of a single witness can prove any fact. (CALCRIM No. 301.)
CALCRIM No. 301 states: “The[] testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” The record does not indicate that either side requested the instruction, nor is there any objection for failing to give the instruction. Nonetheless, the trial court has a sua sponte obligation to give this instruction. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) There is no explanation in the record for the omission.
Nevertheless, reversal is not required unless the omission has resulted in a miscarriage of justice, i.e., it is reasonably probable that Cantu would have obtained a better result if the instruction had been given. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.) Cantu cannot establish he would have obtained a better result because the concepts in CALCRIM No. 301 were addressed adequately in the other instructions given to the jury.
At the beginning of trial, the trial court instructed the jury that it must impartially consider all of the evidence before deciding whether the People proved the defendant guilty beyond a reasonable doubt. (CALCRIM No. 220.) The jury was instructed on the believability of witnesses, specifically that it must judge the testimony of each witness by the same standard. (CALCRIM No. 226.) The jury was instructed that it must not disregard the testimony of any witness without a reason to do so. The jury was instructed that if there was a conflict in the testimony, it must decide what evidence was believable, and not decide the point merely by counting the number of witnesses who testified in the same manner. The jury was instructed that the testimony was important to the extent it was convincing, and not because a number of witnesses testified about a certain point. (CALCRIM No. 302.)
These instructions adequately conveyed to the jury how it must evaluate the testimony, and that testimony should not be believed simply because more than one witness testified to the same point. The instructions also adequately informed the jury to consider all of the testimony. These are the concepts embodied in CALCRIM No. 301. We presume the jury understood and followed the instructions. (Holt, supra, 15 Cal.4th at p. 662.) Accordingly, we conclude there is no possibility that Cantu would have obtained a better result had the instruction been given.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J.LEVY, J.