Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF133551, Kurt J. Lewin and Helios (Joe) Hernandez, Judges.
Judge Lewin is a retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Judge Lewin presided over the trial; Judge Hernandez presided over the sentencing hearing.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant and appellant Frank Delhierro hit his girlfriend, R.B., in the head with his fist, causing a subdural hematoma. Two or three days later, while she was weak and ill from the head injury, he hit her in the face, threatened her with a screwdriver, and dragged her by her hair. When she asked to be taken to the hospital, he refused to let her go. Eventually, with the aid of her mother, R.B. was later taken to the hospital where she underwent brain surgery.
Defendant was charged with two counts of corporal injury to a cohabitant (counts 1 and 5; Pen. Code, § 273.5, subd. (a)), two counts of assault by means of force likely to produce great bodily injury (counts 2 and 4; § 245, subd. (a)(1)), false imprisonment (count 3; § 236), forcible digital penetration (count 6; § 289, subd. (a)(1)), forcible oral copulation (count 7; § 288a, subd. (c)(2)), kidnapping (count 8; § 207, subd. (a)), criminal threats (count 9; § 422), and dissuading a witness by force or threat (count 10; § 136.1, subd. (a)(1)). The People also alleged the following sentence enhancement allegations: defendant inflicted great bodily injury (counts 1 and 2; § 12022.7, subd. (a)); defendant personally used a deadly weapon (counts 6 and 7; § 12022.3, subd. (a)); and the criminal threats crime alleged in count 9 was committed for the benefit of a gang (§ 186.22, subd. (b)). The People further alleged that defendant served two prior prison terms. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
At the outset of the trial, the court granted the People’s request to dismiss the gang allegation on count 9.
A jury found defendant guilty of two counts of corporal injury to a cohabitant (counts 1 and 5) and one count of assault by means of force likely to produce great bodily injury (count 4). The jury also found true an allegation that defendant caused great bodily injury. The jury could not reach a verdict on the other counts. In a bifurcated proceeding, defendant admitted allegations of two prior prison terms. (§ 667.5, subd. (b).)
Defendant subsequently pled guilty to count 3 (false imprisonment) and count 9 (criminal threats). The other counts on which the jury hung were dismissed. He was sentenced to 10 years 4 months in prison.
On appeal, defendant contends: (1) the court violated his due process right to a fair trial by (a) allowing into evidence testimony that he was a member of a gang and (b) denying his request for a mistrial after a witness stated that defendant was on parole; (2) the court erred by failing to give a limiting instruction regarding gang evidence; and, if he waived this argument by failing to request the instruction, his trial counsel thereby deprived him of his right to effective assistance of counsel; (3) fines imposed under Government Code section 70373 must be reversed because that statute should be applied prospectively only; and (4) the abstract of judgment must be corrected to reflect the court’s award of actual custody and conduct credits.
We agree with both parties that the abstract of judgment must be corrected, and will direct the court to do so; we reject defendant’s other arguments and affirm the judgment as modified to reflect his credit for time served.
II. FACTUAL SUMMARY
In 2006, R.B. was 20 years old. She lived at her mother’s home along with her infant son and other relatives. R.B. and defendant’s relationship began when she bought methamphetamine from him. They developed a personal relationship that led to him moving in with R.B. at her mother’s house. They were together for approximately two months.
R.B. knew defendant was a gang member and that a lot of people were scared of him. She knew his gang moniker was Smiley and that he had tattoos that indicated he was in a gang. Defendant would brag to her about things he did with his fellow gang members. He told R.B., for example, how he had a run-in with a gang member known as Lizard, who had caused him some trouble with the police by “opening his mouth[.]” Defendant told R.B. he took care of that problem, and Lizard was now “missing.” R.B. testified generally that defendant had “a lot of stories about beating people up and taking people out and things like that.”
Defendant became increasingly aggressive and violent toward R.B. On October 2, 2006, they were in R.B.’s bedroom. They argued and defendant hit R.B. with his closed fist on the right side of her face, near her temple. R.B. immediately felt nauseous and dizzy. The two left in defendant’s car for awhile, then returned to R.B.’s mother’s house. R.B. felt sick and was vomiting. She told defendant she wanted to go to the hospital, but defendant told her “[n]o.”
The next morning, R.B. told defendant she was in a lot of pain, that something was wrong, and that she wanted to go to the hospital. Defendant told R.B. he could not take her to the hospital “because it wouldn’t look right.” R.B. called a friend to take her to the hospital. With the understanding that R.B. would not tell anyone that defendant hit her, defendant then took R.B. to the friend’s house, and the friend took her to the hospital.
R.B. told a nurse at the hospital that she had been “jumped.” She did not call the police or tell anyone at the hospital that defendant hit her because she was afraid of what defendant might do. Her mother came to the hospital and told people that R.B. had been beaten by defendant. R.B. denied knowing defendant and said her mother was crazy. R.B. was released from the hospital after being told that she was fine.
When R.B. returned to her mother’s house, her son was gone. R.B.’s mother had taken the child to her sister’s home and refused to tell R.B. where he was. Her mother told R.B. she would not get her son back because she was with defendant and it was not safe for her son. R.B. called the police to complain that her mother had taken her son. When the police arrived, they tried to calm the situation, and told R.B. to wait until the next morning. The police asked R.B. about the injury to her face. R.B. told them she had been jumped; she did not tell them about defendant because she was scared to tell the truth.
R.B. was concerned that defendant might believe she had told the police about him. She called him, and he came and picked her up. They went to the house of a friend of defendant. R.B.’s head felt “[h]orrible”; she was still feeling nauseous and was vomiting. When defendant got mad and irritated, R.B. left the house, got into defendant’s car, and went to sleep.
In the morning, defendant woke R.B. and yelled at her, accusing her of having sex with someone in his car. She denied this. He drove them to another friend’s house, where R.B. went to sleep in a room. When she woke, defendant accused her of flirting with his friend. He shook her, hit her in her mouth, and dragged her around the room by her hair. He held a screwdriver to her neck and asked her, “[w]hy should I let you live?” He scraped her arm with the screwdriver. R.B. felt like she was going to die because of the pain in her head and she wanted to go to the hospital. Defendant would not let her leave, and told her the only way she would leave would be in a casket. She promised him she would not tell on him.
R.B. testified to certain acts that took place during this time that supported the counts of forcible digital penetration and forcible oral copulation. Because these counts were ultimately dismissed, these facts are omitted from our summary.
They got into defendant’s car and drove around. R.B. kept asking defendant to take her home, but he would not comply. He asked R.B. for her promise not to tell on him, and she agreed.
Eventually, defendant took R.B. to her mother’s house. R.B. went into her room and fell asleep. When R.B. woke, the pain in her head was horrible, like it “was going to explode.” She screamed for her mother. Her mother saw that R.B. was sick and weak; a lot of R.B.’s hair was missing, she had a black eye, and her face was swollen. R.B. told her mother she was going to die. Her mother called 911 and paramedics responded. She was taken to the hospital and diagnosed as having a subdural hematoma-a blood clot between the dura (a lining under the skull) and the surface of the brain. According to a treating physician, the injury was life-threatening. R.B. underwent brain surgery to remove the hematoma. She was discharged from the hospital on October 16, 2006. After she was released from the hospital, R.B. told a police officer what had happened.
At trial, the prosecutor asked R.B. about her fear of defendant. R.B. said defendant had told her that she knew too much and that she could end up missing, “‘just like’” Lizard. The prosecutor asked: “Those statements about knowing too much, casket, bragging about people disappearing, and all these gang activities, are those the types of things that were in your mind when you thought about telling the police what happened?” R.B. answered, “Yes.”
During R.B.’s mother’s testimony, she said she believed defendant hurt R.B. “because he was a known gang member, drug dealer[.]” The court then told the jurors that “all of the answers the witness has given as to her impression of the defendant are limited in your consideration for her impression, not that they are actually true of the defendant.”
In 2005, Brian McLane was a Fontana police officer assigned to the police department’s gang unit. His responsibilities included gathering intelligence on gang activity. He testified that in 2005, defendant told him he was a member of a Los Angeles County gang called Puente 13, and that his gang moniker was Smiley. Officer McLane also testified that defendant had tattoos that indicated he was aligned with and accepted by the Mexican Mafia.
Officer McLane testified to conversations he had with R.B. following the October 2006 incidents. R.B. told Officer McLane what had happened and how she was “extremely scared” of defendant. Officer McLane stated: “It was clear to [R.B.] that [defendant]... is [a] very well-respected gang member in her mind. That the people he associated with felt like he was a superior person to them and that he had.... [¶]... [¶]... some decision-making power, as she put it, to make things happen if he wanted to.” R.B. told Officer McLane that defendant talked to her about the trouble Lizard caused him and bragged about how he had “taken care of that problem, Lizard.” Officer McLane was aware that defendant had been arrested based on statements Lizard made. Finally, Officer McLane explained that in gang culture, being a rat or snitch “are dealt with in a disciplinary manner by the gangs, ” which can include getting beaten up or murdered.
III. ANALYSIS
A. Admission of Evidence Regarding Defendant’s Gang Membership
As set forth in our factual summary, R.B., her mother, and Officer McLane referred to defendant’s gang membership, tattoos, and moniker in their testimony. Defendant contends that such testimony was more prejudicial than probative and therefore inadmissible. Because the court did not abuse its discretion in allowing the evidence, there was no error.
Defendant was charged with, among other counts, making criminal threats under section 422. Section 422 provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
“In order to establish a section 422 violation, the prosecution must establish (1) that the defendant had the specific intent that his statement would be taken as a threat (whether or not he actually intended to carry the threat out), and (2) that the victim was in a state of ‘sustained fear.’ The prosecution must additionally show that the nature of the threat, both on ‘its face and under the circumstances in which it is made, ’ was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim’s fear reasonable.” (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.) “[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; see also People v. Mosley (2007) 155 Cal.App.4th 313, 324.)
Here, the surrounding circumstances include the facts that defendant was a gang member who bragged to R.B. about beating people up, “taking people out, ” and causing another gang member (i.e., Lizard) to be “missing.” Such facts are relevant because they have some “tendency in reason to prove” that defendant intended his statements to be taken as threats and that R.B.’s fear was reasonable. (Evid. Code, § 210; see People v. Mendoza, supra, 59 Cal.App.4th at pp. 1340-1341.) Officer McLane’s testimony that defendant was in a gang and had tattoos indicative of the Mexican Mafia was relevant to corroborate R.B.’s testimony about defendant’s gang membership and to further support the fact that R.B.’s fear was reasonable.
Relevant evidence may be excluded if its probative value is substantially outweighed by a substantial probability that its admission will cause undue prejudice. (Evid. Code, § 352.) As our state Supreme Court has explained, “[i]n cases not involving the gang enhancement, ... evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Because evidence of gang membership may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it. (People v. Williams (1997) 16 Cal.4th 153, 193.) The court’s ruling on this issue is reviewed for an abuse of discretion. (See People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Defendant has failed to establish an abuse of discretion. The evidence of defendant’s gang membership was relatively brief and directly relevant to the issues presented by the criminal threats charge. Officer McLane’s testimony concerning defendant’s gang affiliation was generally limited to defendant’s membership in a gang, his moniker (Smiley), and his tattoos. He did not, for example, describe specific incidents of violence involving defendant, the Puente 13 gang, or the Mexican Mafia.
The admission of the evidence of defendant’s gang membership, we conclude, was well within the trial court’s discretion. Accordingly, there was no error.
B. Denial of Request for Mistrial Following Testimony That Defendant Was on Parole
During the examination of R.B.’s mother, the prosecutor asked: “Now, when you talked to Deputy Frieberg at the second hospital, Riverside Community, you told him just briefly that the defendant had punched your daughter; right?” The mother answered: “Wasn’t just briefly. I stepped outside with him and had a cup of coffee and I told him R.B. is terrified of [defendant]. This is a little bit about his background. She’s not going to willingly tell you that it was him. And where he lives and that he’s on parole and all of these other things.”
Defense counsel immediately objected and moved to strike. The court sustained the objection and admonished the jury to “disregard the witness’s answer regarding any parole the defendant was on....”
Later, outside the presence of the jury, defendant requested a mistrial on the basis that the jury might not be capable of putting aside the mother’s reference to defendant’s parole status. The court denied the motion, explaining that it did not believe “the blurting out of [the mother] that the defendant is on parole is sufficiently corrosive to require a mistrial.” The court further stated it was confident the jury would follow its instruction, and added: “If counsel wants to request any further cautionary instruction on that subject, I will do so. I’ll have to evaluate whether that will simply lend emphasis to that statement by [the mother] or not. It’s up to counsel. I will give it, if it’s requested.”
“‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) We review the trial court’s ruling for an abuse of such discretion. (Ibid.)
The mother’s reference to defendant being on parole was isolated and brief. The court promptly admonished the jury to disregard the statement. There was no further mention of the parole status before the jury from witnesses or counsel. In instructing the jurors prior to deliberations, the court reminded them: “If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.” The jury presumably followed the instruction. (See People v. Horton (1995) 11 Cal.4th 1068, 1121.) Under these circumstances, the court did not abuse its discretion in denying defendant’s motion for mistrial.
C. Failure to Give Limiting Instruction and Ineffective Assistance of Counsel
Defendant contends the court erred by failing to give the jury a limiting instruction regarding the use of gang evidence. The court, however, has no sua sponte duty to give such an instruction and defendant failed to request it; the argument is therefore waived or forfeited on appeal. (See People v. Freeman (1994) 8 Cal.4th 450, 495; People v. Montiel (1993) 5 Cal.4th 877, 928 & fn. 23.)
Prior to trial, defendant moved to bifurcate the gang enhancement allegation made in connection with the criminal threats count. Defendant further requested: “[S]hould the court deny the motion to bifurcate the gang enhancement alleged under Count 9, that the court give a limiting instruction as to the testimony and evidence presented to support that enhancement.” The court indicated, by way of a tentative ruling, that it would not grant the motion to bifurcate, but would give the cautionary instruction. It did not, however, make a final ruling on the issue and defendant did not subsequently request a cautionary instruction.
Defendant argues, however, that the failure to request a limiting instruction will not waive or forfeit the issue in “an extraordinary case” where the failure effectively deprives the defendant of his constitutional right to due process and a fair trial. (See People v. Hannon (1977) 19 Cal.3d 588, 600; § 1259.) This is not such an extraordinary case. As explained above, the testimony of defendant’s gang membership was limited and directly relevant to the criminal threats issue in the case. Viewing the record in its entirety, the evidence of his gang membership was not highly inflammatory, particularly in light of the evidence of the physical assaults on R.B. The absence of a limiting instruction did not implicate defendant’s constitutional rights. (See People v. Cowan (2010) 50 Cal.4th 401, 479-480; People v. Collie (1981) 30 Cal.3d 43, 64.)
Defendant argues that if his counsel’s failure to request a limiting instruction waived the argument on appeal, he was deprived of his constitutional right to effective assistance of counsel. We disagree.
In order to prove that defendant had ineffective assistance of counsel, defendant has the burden of establishing that: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove that counsel’s performance was deficient, defendant must affirmatively show counsel’s deficiency involved a crucial issue which cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “[W]here 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, 926.) “To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Defendant failed to establish that there was no conceivable reason for the failure to request a limiting instruction. As our state Supreme Court has stated, the failure to request a limiting instruction may have been the result of a strategic decision to avoid emphasizing the evidence to the jury, especially when it is “obvious for what purpose it was being admitted.” (See People v. Freeman, supra, 8 Cal.4th at p. 495; see also People v. Champion (1995) 9 Cal.4th 879, 926, fn. 16.) Here, it is clear from the nature of the evidence, the context in which the testimony was presented, and the arguments of counsel, that the purpose of the evidence regarding defendant’s gang membership was to establish the intent and fear elements of the criminal threats charge. Defense counsel could reasonably have concluded that a cautionary instruction regarding the gang evidence would merely emphasize the fact that defendant is a member of a gang.
Defendant has also failed to establish the second Strickland element-prejudice. As discussed above, the evidence of defendant’s gang membership was limited, plainly relevant to the criminal threats charge, and not highly inflammatory. Based on our review of the entire record, we conclude it is not reasonably probable that the outcome of the trial would have been any different if the limiting instruction had been given. Defendant has therefore failed to satisfy his burden of establishing that he was deprived of effective assistance of counsel.
D. Government Code Section 70373 Fine
Government Code section 70373, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” The statute was enacted in 2008 and effective January 1, 2009. (Stats. 2008, ch. 311, § 6.5, p. 2113.)
Defendant was convicted of his crimes in 2010. Pursuant to Government Code section 70373, the trial court imposed five criminal conviction assessment fines of $30.
Defendant contends that these fines are improper because he committed his crimes in 2006, before the enactment of Government Code section 70373. He asserts that the statute does not apply to crimes committed before its effective date.
This court recently rejected an identical argument in People v. Lopez (2010) 188 Cal.App.4th 474, 478-480 [Fourth Dist., Div. Two]. In Lopez, we expressly agreed with the reasoning of other recent decisions which have uniformly held that the date of conviction, not the date of the crime, controls application of the statute and the liability for the fine. (Id. at pp. 479-480, citing People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415 [Third Dist.]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494 [Third Dist.]; People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 [Second Dist., Div. Four]; People v. Phillips (2010) 186 Cal.App.4th 475, 477-479 [Fifth Dist.]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112 [Third Dist.].) We see no reason to reconsider our holding in Lopez here.
Lopez was decided six days after defendant filed his opening brief. It is not mentioned in the People’s respondent’s brief or in defendant’s reply brief.
E. Omission of Credit for Time Served
After the mistrial was declared as to the counts on which the jury could not reach a verdict, defendant pled guilty to count 3 (false imprisonment) and count 9 (criminal threats). The plea agreement indicated defendant would receive 1, 293 days of actual credit for time served and 646 days of conduct credit, for total credits of 1, 939 days. When the court pronounced sentence, it stated that defendant would receive the 1, 939 days, in accordance with the plea agreement. However, neither the minutes for the sentencing hearing nor the abstract of judgment reflect any credits. The People agree with defendant that this is an error that should be corrected.
An appellate court has the inherent power to correct any clerical errors in the abstract of judgment to reflect the true nature of the judgment or proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183.) Accordingly, we will direct the court to correct the error.
IV. DISPOSITION
The trial court is directed to modify the judgment to provide for 1, 293 days of actual credit for time served and 646 days of conduct credit, for a total of 1, 939 days. The trial court is further directed to prepare an amended abstract of judgment to reflect these actual, conduct, and total credits for time served. The trial court is further directed to forward copies of the minute order reflecting the court’s modification of the judgment and the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., McKinster, J.