Opinion
C085999
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ADDISON DUNCAN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR03587X)
THE APPEAL
Defendant Justin Addison Duncan while arguing with R.A., his girlfriend, hit her in the face with his closed fist causing her to bleed profusely and struggled with her on a highway while at least one car was forced to avoid them. He was convicted by a jury of inflicting corporal injury on R.A. and the trial court sentenced him to two years in prison.
Defendant appeals. He argues his trial counsel provided ineffective assistance of counsel based upon a number of deficiencies in his counsel's representation at trial.
Because defendant did not receive ineffective assistance of trial counsel, we affirm the judgment.
FACTS
Defendant and R.A. had an on and off dating relationship. On August 23, 2016, Bruce Duncan, defendant's father, drove R.A. and defendant to the courthouse. Because defendant and his father have the same last name, we will refer to his father as Bruce.
On the way to the courthouse, R.A. drank vodka in a Gatorade bottle. She was "pretty liquored." R.A. was seated next to Bruce on the ride to the courthouse and he could smell alcohol. After defendant and R.A. were finished with their court appearances, Bruce drove them back to his home, a cabin, and he again smelled alcohol in the cab of the truck. They got back to Bruce's cabin around 3:30 p.m., and Bruce went inside to watch television. Defendant and R.A. left to hitchhike back to their home in Nevada. He and R.A. were arguing and he was not happy she had gone to court drunk.
Colleen Dotta, rented a cabin on her property to Bruce. On August 23, 2016, Dotta heard loud voices and arguing for about 30 minutes. She called the sheriff's department. She saw R.A. walking down the driveway. Defendant followed R.A., caught up to her, and then hit her with a closed fist. Dotta blurted out to dispatch, "Oh, shit, he hit her!" Dotta then saw defendant throw R.A., and they were "tussling" in the middle of Highway 89, as R.A. tried to get away. Cars driving on the highway had to go around them. Defendant grabbed R.A., and Dotta saw them walk back up her driveway. Defendant was trying to clean up R.A.'s bloody face with his T-shirt. Dotta told dispatch, "There was quite a bit of blood."
Dotta reported that Bruce had come to her home a few days before trial and called her "rotten" and a "lowlife." He swore at her and she felt intimidated and frightened. Dotta also acknowledged she and defendant had had a "bit of a problem" when she hired him to do a job. Instead of working, he sat around drinking beer with his friends, so she docked his pay.
Andrew Wallace and his wife were vacationing in the area around Calpine. They were driving on Highway 89 in Sierra County on August 23, 2016, and when they came around a curve, Wallace saw defendant and R.A. R.A. was standing on the wrong side of the white line on the side of the highway. Wallace slowed down and pulled into the oncoming traffic lane to avoid hitting her. As he drove by, Wallace could see that there was something wrong; R.A. had her thumb out, and looked terrified. Through his rearview mirror, Wallace saw defendant grab R.A. by the back of her neck and shove her down the road. He shoved her so violently her "arms were flailing and she was obviously being forced and pushed by the neck." Wallace's wife dissuaded him from stopping, so he called 911 instead. Minutes later, a sheriff's deputy drove past Wallace towards where the incident had occurred.
Sierra County Sheriff's Deputy Brad Dempster was dispatched to a call of a fight in progress. Dempster was familiar with both defendant and R.A. from previous contacts with both of them. As he pulled up to Dotta's home, he saw defendant and R.A. standing face-to-face. Defendant's shirt was off and R.A. was holding a white T-shirt with blood stains on it. R.A. appeared to have been hit in the face. She had dried blood on her face, blood on her hand from wiping her face, and a petechial hemorrhage in her right eye. Dempster explained that a petechial hemorrhage is a condition consistent with "like strangulation." Defendant also had dried blood at the base of his fingernails. Dempster smelled alcohol on both R.A. and defendant. R.A. told Dempster she had gotten hurt because she tripped and fell, and she "begged" Dempster to arrest her instead of defendant. She also declined an ambulance. Dempster testified the blood on R.A.'s face was consistent with falling, and could have happened in a number of ways; however, the petechial hemorrhage was not consistent with falling, but rather with strangulation.
Dempster took pictures of R.A.,'s face, hand, the blood-stained clothing, defendant's hands, and the outside of Dotta's home and driveway. He also obtained a Google Earth aerial image of Dotta's property showing Highway 89, and indicating the distance from the house to the bottom of the driveway was 85 yards. Those photos were admitted as evidence and published to the jury.
Defendant denied he had been drinking that day. Defendant denied he had ever hit, strangled, or thrown R.A. down. He said as they were getting ready to leave and gathering their things, he saw R.A. picking herself up off the ground. When she came up to him, her face was bloody. He took his shirt off to try to help her. As they were heading to the highway to hitchhike, she fell again, but he grabbed her to catch her and break her fall. A car passed and almost hit R.A., so as the car went by, he grabbed her shoulder and brought her off the road. Defendant admitted he had a 2014 prior conviction for conspiracy to commit burglary.
R.A. did not appear at trial. Dempster tried to serve R.A. with a subpoena. He tried to locate her at a number of places and homes that he had known her to frequent over the years, but he could not locate her.
LEGAL PROCEEDINGS
An information charged defendant with inflicting corporal injury resulting in a traumatic condition upon a cohabitant (Pen. Code, § 273.5, undesignated section references are to the Penal Code). A jury found defendant guilty. The trial court sentenced defendant to the low term of two years in prison. The trial court imposed a $300 restitution fine (§1202.4, subd. (b)), imposed and stayed an identical post-release community supervision revocation fine (§ 1202.45), a $30 restitution surcharge (§ 1202.4, subd. (l)), a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $25 miscellaneous screening fee (§ 1463.07), and a $500 domestic violence fund fine (§ 1203.097). The trial court awarded defendant 60 days of presentence custody credits.
DISCUSSION
Defendant contends he received ineffective assistance of counsel at trial. He raises numerous alleged deficiencies in counsel's performance claiming two of these errors, standing alone, resulted in prejudice: (1) counsel's failure to object to evidence of the relationship between defendant and R.A. and (2) counsel's failure to object to Dempster's testimony regarding the petechial hemorrhaging and its likely cause.
Defendant also contends there were five additional instances of errors by counsel which, cumulatively, and in conjunction with the first two claims, establish prejudice. These errors were: (1) failing to request a limiting instruction for the use of defendant's prior misdemeanor conviction; (2) failing to object to Dempster's testimony about his efforts to find R.A. for trial; (3) failing to introduce photographic evidence; (4) appearing not to understand the scope of his right to cross-examine on the potential bias of Dotta; and (5) erroneously attempting to impeach Dempster with an inconsistent statement that was not inconsistent.
I
The Law Relating to Ineffective Assistance of Counsel
Defendant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248.) To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674, 693, 698] (Strickland); People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) If a defendant fails to establish either component, the ineffective assistance claim fails and we need not address the other component. (Strickland, at p. 697; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
"When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' " we must reject the contention. (People v. Haskett, supra, 52 Cal.3d at p. 248.) " '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." ' [Citations.] '[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. [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result absent counsel's deficient performance. (Strickland, supra, at pp. 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) We need not discuss whether counsel's performance was deficient if an ineffective assistance of counsel claim can be rejected on the grounds of lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.)
II
The Failure to Object to Dempster's Testimony that Defendant and R.A. were
Cohabitants
Defendant argues trial counsel should have objected to Dempster's testimony that defendant and R.A. were cohabitants. He contends it could not have been a tactical decision as counsel had objected to Dotta's earlier testimony that she assumed R.A. was defendant's live-in girlfriend. He argues if trial counsel had objected, the objection would have been sustained and the People would have been left with no evidence of cohabitation.
During Dotta's testimony, the People asked whether Dotta knew R.A. prior to this incident:
"A: I had seen her. I had talked to her. I had no reason to like or dislike her.
"Q: Okay. And what relationship is she to [defendant]?
"A: She was his girlfriend.
"Q: Sort of live-in girlfriend?
"A: I assume so, yes.
"[DEFENSE COUNSEL]: Objection, Your Honor. There's no personal knowledge of that." The trial court sustained the objection.
Later, in Dempster's testimony, the People asked whether he knew R.A. and defendant prior to the call. He stated he knew them from previous contacts. The People then asked if he knew what the relationship between defendant and R.A. was:
"A: Yes.
"Q: What is that?
"A: They had an on again/off again romantic relationship over an extended period of time.
"Q: Cohabitants?
"A: Yes."
"[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
We can easily discern tactical reasons for counsel's decision not to object to Dempster's testimony on this point. Had counsel stated an objection it would only have led to a detailed recitation of the "previous contacts" with Dempster and law enforcement which would have demonstrated the nature of the relationship between defendant and R.A., testimony that could have proved damaging to defendant's case. Rather, the defense strategy was not to deny the nature of the relationship, but rather, to deny the battery and claim R.A. had fallen down and injured herself in her drunken state. This was a reasonable defense strategy.
Contrary to defendant's claim, the objection to Dotta's testimony does not establish there was no reason not to object to Dempster's. Dotta's testimony was that she assumed defendant and R.A. lived together. Trial counsel objected based on her lack of personal knowledge, a standard objection, and that objection did nothing to suggest defendant should have pursued the issue of cohabitation with Dempster, probably to defendant's detriment.
The decision not to object to Dempster's testimony was a reasonable tactical decision.
III
Failure to Object to Dempster's Expert Testimony Regarding Petechial Hemorrhage and
Its Cause
Defendant argues trial counsel should have objected to Dempster's testimony that R.A. had a petechial hemorrhage and such an injury is most consistent with strangulation. He contends trial counsel's performance was deficient, as he did not ask to voir dire Dempster regarding his qualifications to diagnose the hemorrhage or explain its potential causes. He contends this testimony was prejudicial because the petechial hemorrhage was the only evidence "to which the defense had no answer."
The prosecutor asked Dempster what kind of injuries he observed on R.A. He answered:
"A: She appeared like she had been hit in the face. She had dried blood on her face. And she had a petechial hemorrhage in, I believe her right eye.
"Q: Did you take—what do you mean by that?
"A: A petechial hemorrhage?
"Q: Yeah.
"A: It's a condition indicating—it's consistent with like strangulation. When the body is not getting enough oxygen, you can get basically a red spot in your eye.
"Q: And you have training to be able to determine this?
"A: I do.
"Q: What kind of training?
"A: Emergency medical technician. Worked on an ambulance for years."
Subsequently, defense counsel called Dempster as a witness to elicit testimony that R.A. had told Dempster she had tripped and fallen. During that cross-examination, the People elicited further testimony about the petechial hemorrhage.
Dempster testified R.A.'s bloody face could have happened in a number of ways, including a fall, but the petechial hemorrhage was not consistent with falling
"[DEFENSE COUNSEL]: Your Honor, I'm going to object. This is, I believe outside the scope of the direct examination.
"[DISTRICT ATTORNEY]: We're allowed to go into the whole thing.
"THE COURT: Just a minute, let me rule. [¶] Based on the lack of objection to the first question about consistency, the falling, I'm going to overrule the objection.
"Q (By [DISTRICT ATTORNEY]): Okay. What is it consistent with?
"A: The petechial hemorrhage is consistent with strangulation, asphyxiation. Basically the body starts to go hypoxic.
"[DEFENSE COUNSEL]: Your Honor, I'm going to object to this testimony, because there's no foundation that this officer is trained in this area that he has testified about in this court.
"THE COURT: I view that as a foundation objection.
"[DEFENSE COUNSEL]: Yes.
"THE COURT: The officer testified yesterday about his training as an EMT. And he already provided almost his identical testimony yesterday absent objection, so I'll overrule it.
"Q (By [DISTRICT ATTORNEY]): Go ahead.
"A: Essentially a petechial hemorrhage is consistent with strangulation, hypoxia where the body is not receiving enough oxygen. It's one of the signs of that to have essentially like a red blotch bleeding in the eye."
The prosecutor then went on to more fully explore Dempster's medical qualifications, that he was trained as an emergency medical technician (EMT), still held certificates as a firefighter and EMT, had worked a number of years in a hospital emergency room, and on an ambulance. In the emergency room, he assisted doctors in resetting bones, intubating patients, and "pretty much everything."
We do not agree that trial counsel's failure to object to Dempster's initial testimony on this point was deficient performance, as we disagree with defendant's assertion that Dempster was not qualified to testify as to the existence of a petechial hemorrhage and the likely causes of one. Even if an objection to Dempster's initial testimony on this point had been sustained, based on Dempster's subsequent testimony, the record shows the People would have been able to overcome that objection and establish a proper foundation for Dempster's testimony.
Evidence Code section 720 provides that a person may testify as an expert "if he has special knowledge, skill, experience, training, or education sufficient to qualify him" (id. subd. (a)), which "may be shown by any otherwise admissible evidence, including his own testimony." (Id. subd. (b).) " ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' (Seneris v. Haas (1955) 45 Cal.2d 811, 833.)" (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
Petechial hemorrhages are the type of injury that a law enforcement officer and an EMT are commonly exposed to, as defendant acknowledges, "undoubtedly, Dempster must have some familiarity with petechial hemorrhages—he would be engaging in gross misconduct otherwise." Here, Dempster testified he had training to determine petechial hemorrhages and their causes, been trained as an EMT and held multiple medical certifications, had worked for years in hospital emergency rooms and on ambulances, assisting doctors in every area. The prosecution laid sufficient foundation for Dempster's testimony about the petechial hemorrhage and its likely cause. (See People v. Navarette (2003) 30 Cal.4th 458, 511.) Further, it is likely that additional examination of Dempster on his qualifications and experience with petechial hemorrhages would have bolstered his credibility on this point, not lessened it. Thus, it was a reasonable tactical decision not to further challenge Dempster on his foundational qualifications. In addition, the jury was shown the picture of R.A.'s injuries. As defendant notes, this picture does not clearly show a "red blotch," a petechial hemorrhage, in R.A.'s eye. Defense counsel could have reasonably made the tactical decision that this photographic evidence was a more effective counter to Dempster's testimony than additional examination.
IV
Additional Claims of Errors by Counsel
Defendant contends there were five additional instances of errors by counsel which, cumulatively, and in conjunction with the first two claims, establish prejudice. These errors were: (1) failing to request a limiting instruction for the use of defendant's prior misdemeanor conviction; (2) failing to object to Dempster's testimony about his efforts to find R.A. for trial; (3) failing to introduce photographic evidence; (4) appearing not to understand the scope of his right to cross-examine on the potential bias of Dotta; and (5) erroneously attempting to impeach Dempster with an inconsistent statement that was not inconsistent. Defendant acknowledges none of these errors alone is prejudicial.
Some of these claims were not error. Counsel did not err in failing to object to Dempster's testimony about trying to find and subpoena R.A. Defendant claims this evidence was irrelevant and prejudicial, because it intimated R.A. was a vulnerable, transient person and raised an inference that defendant's family might be responsible for her unavailability. We agree that this evidence was irrelevant to any matter disputed at trial. However, we do not agree with the speculative inferences and intimations defendant has drawn from the testimony and we do not agree the jury would have reached those conclusions. Rather, it seems more likely that counsel decided not to object because the testimony was on a minor irrelevant point, with no prejudicial impact. And, objecting to the evidence might have made it appear to have more relevance than it did. (People v. Williams (1997) 16 Cal.4th 153, 215.) This was a reasonable tactical decision.
Counsel did not err in failing to introduce two photographs into evidence. One photograph showed Dotta's property, Highway 89's relation to that property, and the curve on Highway 89. The other photograph showed a speed limit sign of 35 miles per hour and a distance from Dotta's house to around the curve in question on Highway 89. This information was before the jury both in the testimony of Bruce Duncan, and in the Google Earth aerial image of the area introduced by the People in People's exhibit 7. It was a reasonable tactical decision for counsel to decide not to seek to admit evidence that was cumulative.
This leaves three claims of error. The failure to request a limiting instruction as to defendant's prior misdemeanor conviction, defense counsel's apparent confusion as to the scope of permissible cross-examination of Dotta and her potential bias against defendant, and defense counsel's "botched" attempt to impeach Dempster with a prior inconsistent statement.
As to the claim of error regarding Dotta's cross-examination, defendant acknowledges this error was legally harmless as defense counsel in fact did cross-examine Dotta on this point.
We cannot see that the other two errors result in prejudice. The evidence that defendant committed the acts with which he was charged was overwhelming. One eye-witness saw the violent assault, another observed what happened on Highway 89 and the injuries R.A. suffered were described, particularly the petechial hemorrhage in her eye which could not have been consistent with a fall. (See Strickland, supra, 466 U.S. at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed"].)
Where there are "numerous deficiencies in defense counsel's performance," reversal is required if there "exists a reasonable probability that the outcome . . . would have been different but for the cumulative impact of defense counsel's numerous failings." (In re Jones (1996) 13 Cal.4th 552, 584, 587.) The issue with a cumulative prejudice claim is whether "the justice of [the judgment] was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance." (Strickland, supra, 466 U.S. at p. 700; In re Jones, at p. 587.) We cannot find that, absent these relatively minor errors, the outcome of the trial could have been different.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
RENNER, J.