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People v. Davis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
A129904 (Cal. Ct. App. Jan. 26, 2012)

Opinion

A129904

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. HAROLD OSBORN DAVIS, JR., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Lake County

Super. Ct. No. CR921394)


I. INTRODUCTION

After a two-day jury trial, appellant was convicted of one count of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and one count of misdemeanor battery. (§ 242.) He appeals, claiming that (1) the trial court erred in omitting to instruct the jury on simple assault (§ 240) or, alternatively, (2) his trial counsel was ineffective in specifically waiving in the trial court, an alternative instruction under section 240. We hold that any error in the trial court was invited error and that there was no ineffective assistance of counsel. We thus affirm appellant's conviction.

All further statutory references are to the Penal Code.

II. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of February 16, 2010, officers of the Lakeport Police Department were summoned, via a 911 call from a neighbor, to apartment No. 4 located at 958 Bevins Court in Lakeport. Two neighbors told the police that they heard "loud yells and banging" lasting over an hour coming from that apartment, which was occupied by Nicole Stratton, the apparent victim in this case.

Officer James Bell, one of the responding officers, heard loud noises coming from the apartment, and a particularly loud male voice. Bell looked through the blinds into the apartment and saw appellant "sitting on top of a female on the couch, had his hands around the female's neck and she was flailing her arms up and her head was rocking back and forth." According to Officer Bell, appellant was sitting on top of Stratton's chest with both of his hands around her neck, and appeared to be choking her.

Officer Bell kicked in the front door of the apartment and he and another responding officer, Sergeant Kevin Odom, entered it. Appellant jumped off of Stratton "and said he was just trying to get the truth out of her." Stratton, though, told the officers that she thought appellant was going "to kill her." Officer Bell saw red marks around Stratton's neck and lower jaw, and Stratton also showed him a doorway that, she asserted, had been damaged by appellant during the course of their dispute that evening.

Sergeant Odom also heard loud voices coming from the same apartment before the two officers entered it, and also saw appellant straddling Stratton, with his hands around her neck and shaking her up and down in a "significantly violent" manner.

By an information filed on March 19, 2010, the Lake County District Attorney charged appellant with one count of making criminal threats (§ 422), one count of aggravated assault (§ 245, subd. (a)(1)), and a third count of misdemeanor battery. (§ 242.) The information also charged that appellant had three prior prison term commitments (§ 667.5, subd. (b)), and was ineligible for probation under section 1203, subdivision (e)(4).

At the trial, the two officers who entered Stratton's apartment testified as indicated above. The jury also heard a recording of a statement made by Stratton to Officer Bell on the evening in question.

Stratton testified that she and appellant had been friends and that, although the two had argued on the night in question, he had not tried to kill her; she did not recall what the argument was about. She did not know whether she had told Officer Bell that appellant had been choking her, or that she had been having trouble breathing. She testified, contrary to her statements to Officer Bell on the night in question, that appellant had not hit her head against the door in her apartment, and that the damage to that door had been caused earlier by someone else.

At trial, counsel discussed with the trial court (the Honorable Richard C. Martin) the instructions that should be given to the jury. A key portion of that discussion was as follows:

"MR. MOTH [defense counsel]: Your Honor, can I request an additional jury instruction.

"THE COURT: Okay.

"MR. MOTH: My belief is that the 242 is a lesser included of the 245(a)(1). So I believe the jury instruction, I don't know specifically which one, indicating that he can only be convicted of one or the other would be appropriate.

"MS. ABELSON [Prosecutor]: Well, the problem with that is I think there's various acts that—for a 242. If you give that, it's going to be a little bit tricky because they could find that the—and I'm not sure it's necessarily included, I think a 240 is necessarily included in a 245 but I'm not sure about a 242 because

"THE COURT: Yeah, I don't think a 242 is necessarily included. It is I think 654 if you got both and it's the same act, but that's a little different situation.

"Let me check something. It gives the lesser included of a 242. Are you asking that that be given as a lesser of the 245?

"MR. MOTH: I'm sorry, what's 240?

"THE COURT: 240 is simple assault.

"MR. MOTH: No, Your Honor, I think 242 is adequate.

"THE COURT: Basically you got a choice of arguing the 240 as a lesser, the 245 and saying there was no 245, there was no 242, no touching; or you could argue that it wasn't a 245, it was a 242. That's tactically up to you.

"If you request the 240, I'll give it. If you're waiving it for tactical reasons, then I

won't.

"MR. MOTH: We're waiving for tactical reasons.

"THE COURT: Okay. . . ."

After being instructed, the jury found appellant not guilty of the first count (making criminal threats, under section 422), but guilty of both of the other two charged counts, i.e., aggravated assault under section 245, subdivision (a)(1), and misdemeanor battery under section 242.

On September 20, 2010, the trial court sentenced appellant to state prison for a term of seven (7) years, based on both his conviction for aggravated assault and his three prior prison term convictions.

Appellant filed a timely notice of appeal.

III. DISCUSSION

In his briefs to us, appellant contends his conviction for felony aggravated assault under section 245, subdivision (a)(1), should be reversed, but not his conviction for misdemeanor battery under section 242. He contends that (1) the trial court committed prejudicial error by failing to give an instruction on the lesser included offense of simple assault (i.e., the offense covered by § 242) regarding count 2 and (2) his trial counsel provided ineffective assistance by agreeing to waive such an instruction.

In response, respondent Attorney General argues that the specific waiver by appellant's trial counsel of a lesser included offense instruction regarding a possible conviction under section 240 was invited error, and that such did not constitute ineffective assistance of counsel. We agree with respondent.

First of all, the law is clear that "simple assault (§ 240) is a lesser included offense of aggravated assault (§ 245, subd. (a)(1) . . . )," and that a "trial court has a duty to instruct the jury sua sponte on lesser included offenses when 'substantial evidence rais[es] a question as to whether all of the elements of the charged offense are present.' [Citations.]" (People v. McDaniel (2008) 159 Cal.App.4th 736, 747 (McDaniel); see, generally, 5 Witkin, Cal. Criminal Law (3d ed., 2000) §§ 611-612 and 630.)

However, the law is also clear that a party may specifically request, for strategic or tactical reasons, that a court not instruct on a lesser included offense and, when the court accedes to that request and the defendant is subsequently convicted of the more substantial offense, this is "invited error" and the judgment of conviction on the more major offense may not be reversed. Such has been the consistent holding of our Supreme Court in several recent cases (some of them, curiously, not cited by either of the parties to this appeal). Thus, in the most recent such case, People v. Beames (2007) 40 Cal.4th 907, 927-928 (Beames), a unanimous court held: " ' "[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction." ' ([People v.] Horning [(2004)] 34 Cal.4th [871,] 905 [(Horning)], quoting People v. Barton (1995) 12 Cal.4th 186, 198 [(Barton)].) Here, the record clearly reflects that defendant and his counsel expressed a deliberate tactical purpose in resisting instructions on second degree murder and involuntary manslaughter, the very instructions he now complains should have been given. The circumstances here were substantially similar to those in Horning, which found invited error where a capital defendant and his counsel insisted at trial they did not want instructions on the lesser included offenses of second degree murder and manslaughter because they were inconsistent with the defense that the defendant did not commit the crime at all. [Citation.] Consistent with Horning, we find that any error on these theories was invited, and that defendant therefore is barred from invoking such error as a basis for reversing his conviction. Moreover, we are not persuaded to forgo application of the invited error doctrine based on the mere fact that defense counsel did not discuss the elements or the possible merits of these particular lesser included offenses in more depth than he did while addressing the court about the instructions."

As noted, our Supreme Court has held to this same effect many times before. (See, e.g., Horning, supra, 34 Cal.4th at pp. 904-906; Barton, supra, 12 Cal.4th at p. 198; People v. Hardy (1992) 2 Cal.4th 86, 183-184; People v. Cooper (1991) 53 Cal.3d 771, 827-828; People v. Gallego (1990) 52 Cal.3d 115, 182-183; see generally, 6 Witkin, Cal. Criminal Law (3d ed., 2000) Reversible Error, §§ 31, 32, and 2011 Supp.)

Appellant argues that reversal is required here for four reasons, namely: (1) "the trial court is required to instruct on all lesser included offenses supported by the evidence;" (2) trial defense counsel was ineffective because he mistakenly believed that the section 242 battery offense charged in count three was a lesser included offense to the aggravated assault charged in count two; (3) trial counsel was also ineffective in "waiving . . . for tactical reasons" a simple assault instruction because such a result was not "objectively reasonable" because, among other things, of the "compelling evidence in favor of an aggravated assault finding;" and (4) counsel was also ineffective because "there is a reasonable probability that a properly instructed jury could have returned a verdict more favorable" to appellant. These arguments are reiterated in appellant's reply brief to us.

In his reply brief to this court, appellant condenses these arguments to three by combining Nos. 2 and 3 above into one ineffective assistance of counsel argument. We will nonetheless address them as they are articulated in appellant's opening brief.

Our examination of the record convinces us that all of these arguments are simply incorrect and/or unconvincing.

First of all, the oft-repeated rule that a trial court must instruct on lesser included offenses that are supported by the evidence in the record is, as noted by the numerous authorities cited above, subject to the clear exception that that rule does not apply where there is invited error, i.e., where trial defense counsel specifically requests the omission of a lesser included offense instruction for tactical reasons. Such was precisely the holding in Beames, Horning, and Barton, and is directly applicable here in light of defense counsel's very specific request to the trial court that it not instruct the jury regarding the offense of simple assault under section 240, clearly a lesser included offense to the aggravated assault offense charged in count two of the information.

Although appellant cites Barton in both his briefs to us, he neither discusses that decision's articulation of the invited error principle (see Barton, supra, 12 Cal.4th at p. 198) nor references the several more recent decisions by our Supreme Court on the application of that principle.

Appellant's second argument is that defense counsel's decision was "based on a mistaken understanding of the law" regarding whether the section 242 misdemeanor battery count charged in count 3 of the information was a lesser included offense to the aggravated assault charge.

This argument is also unavailing. In the first place, although defense counsel did so state, he was promptly corrected by both the trial court and the prosecutor, as noted above. Nonetheless, and apparently irrespective of whether an instruction on simple assault under section 240 was or was not a lesser included offense to the aggravated assault charge in count 2, appellant's trial counsel very specifically chose to waive any instruction by the trial court under section 240. The record makes clear that that counsel's specific waiver of a section 240 assault charge was not triggered by a belief that the misdemeanor battery charge under section 242 in the third count of the information was a lesser included offense to the section 245 charge. Rather, that counsel most likely did not want the jury instructed on an additional assault charge (i.e., a fourth possible offense) because he thought it was more probable that, if it was instructed on only the three charged offenses of criminal threats, aggravated assault, and simple battery, the jury could more likely be persuaded to convict appellant of only the latter charge than if, alternatively, a fourth charge had been added under the lesser included offense rule. If that had happened, the jury would have been instructed on two separate assault charges, i.e., simple assault under section 240 and aggravated assault under section 245, subdivision (a)(1). Trial counsel could well have concluded that such dual instructions could make it more likely that the jury would deliberate longer regarding the nature of the assault at issue, and thus possibly be more likely to convict for aggravated assault rather than simple assault.

Third, appellant argues that trial defense counsel was ineffective in waiving a charge under section 242 because that placed the jury in "an all-or-nothing position, thereby forcing it to acquit appellant of count two" (the aggravated assault charge). But, appellant continues, such a tactic was not "objectively reasonable" for two reasons. The first reason, he contends, is that "there was compelling evidence in favor of an aggravated assault finding" and therefore it was more likely the jury, if it had a choice between aggravated assault and simple assault, would find appellant guilty of the latter than when, as here, it was instructed regarding aggravated assault and simple battery. The second reason advanced by appellant in favor of this "not objectively reasonable" standard is a bit more difficult to comprehend. As best we understand it, it is this: if the jury had been instructed on both simple assault under section 240 and simple battery under section 242 and found guilty of both, but not guilty of aggravated assault under count 2, he would probably not have been sentenced to consecutive terms for the two misdemeanor offenses and, even if he was, it would not result in the three-year enhancements which were imposed here because of appellant's three prior prison-term convictions.

This argument is simply too convoluted and speculative to withstand scrutiny. In the first place, and as noted in our analysis of appellant's second argument, if the jury had been required to consider a simple assault charge under section 240 in addition to the aggravated assault charge, it might well have spent more time debating the evidence regarding the two assault charges, thus very possibly increasing the likelihood of a finding of aggravated assault.

Additionally, and probably more importantly, all of appellant's arguments that the deliberate waiver of the simple assault charge amounted to ineffective assistance of counsel overlooks an important distinction between simple assault under section 240 and simple battery under section 242. The former is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240, italics added), whereas the latter is defined as "any willful and unlawful use of force or violence upon the person of another." (§ 242.)

As appellant's briefs point out, the testimony presented at trial was conflicting regarding whether appellant in fact used force on Stratton during their altercation. Notwithstanding her affirmative statements to the police officers on that subject on the evening in question, at trial Stratton testified that (1) she could not remember whether their argument "escalat[ed] into more physical than just verbal," (2) she was not in pain or bleeding after the fight, and (3) she did not seek "any sort of medical treatment" that evening or the following day. However, and notwithstanding this testimony, at trial Stratton confirmed that she and appellant had an argument that "just got out of proportion" and he had been yelling and screaming at her on the night in question.

In view of this testimony, defense counsel could have logically preferred the battery charge under section 242 over the simple assault charge under section 240. Indeed, in his closing argument to the jury, he specifically conceded that "the evidence supports that Mr. Davis was guilty only of the misdemeanor [battery] charge. And we say this mostly because there's little to no evidence that Ms. Stratton either suffered from or was in danger of suffering from great bodily injury." Then, in his final words to the jury, the same counsel asked it to find his client "not guilty on counts one and two of the complaint."

In short, defense counsel effectively recognized that his client was going to be convicted of, at least, a misdemeanor, a much preferable alternative because of the three prior prison term enhancements resulting from a felony conviction. And, as between a misdemeanor conviction under section 240 and one under section 242, that counsel could well have concluded that an instruction under the latter was preferable to one under the former because of (1) the wording of section 240, which makes a simple assault conviction possible based only on evidence of an "attempt" plus an "ability" to commit a violent injury and (2) a desire to avoid the jury's consideration of whether the assault involved here was or was not accompanied by "any means of force likely to produce great bodily injury." (§ 245, subd. (a)(1).)

Because the charging information alleged three prior prison term convictions, any conviction of appellant for a felony would result in sentencing enhancements totaling three years and eligibility for probation only "in an unusual case." (See §§ 667.5, subd. (b) and 1203, subd. (e)(4).) As, indeed, it did.
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Finally, appellant's fourth argument, also invoking ineffective assistance of counsel, fares no better. He contends that defense counsel's deliberate waiver of a simple assault instruction put the jury in an "all-or-nothing position" as regards count 2, the aggravated assault instruction, and that, therefore, the jury should have been given the simple assault instruction. But the jury was not in an "all-or-nothing" position, as it could have, alternatively (1) convicted appellant of the verbal threat charge in count 1 and (2) convicted him—as indeed, it did—of the simple battery charged in count 3.

In sum, trial counsel's tactical decision to waive an instruction on simple assault under section 240 and, instead, go to trial on the three charged counts, verbal threats, aggravated assault, and simple battery, did not constitute ineffective assistance of counsel.

IV. DISPOSITION

The judgment is affirmed.

______________

Haerle, Acting P.J.
We concur:

________

Lambden, J.

___________

Richman, J.


Summaries of

People v. Davis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
A129904 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Davis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HAROLD OSBORN DAVIS, JR.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jan 26, 2012

Citations

A129904 (Cal. Ct. App. Jan. 26, 2012)