Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F03292 & 02F07661
BLEASE , Acting P. J.
A jury found defendant Larry Tyrone Ford guilty of first degree robbery (Pen. Code, §§ 211, 212.5; further statutory references are to the Penal Code), first degree burglary (§§ 459, 460), assault on Jami Buntun with a semiautomatic firearm (§ 245, subd. (b)), assault on Chambreya Blanson with a semiautomatic firearm (id.), possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found defendant not guilty of possessing marijuana for sale (Health & Saf. Code, § 11359), but guilty of the lesser included offense of possession of less than 28.5 grams of marijuana, a misdemeanor (id., § 11357, subd. (b)). The jury also found true allegations defendant personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)), burglary (§ 12022.5, subd. (a)), and assaults (§ 12022.5, subds. (a) and (d)), and was personally armed with a firearm when he possessed the cocaine base for sale (§ 12022, subd. (c)).
Although not raised by the parties, we note that the Abstract of Judgment contains a clerical error, namely that defendant was convicted of being a felon in possession of a firearm in violation of section “12022(a)(1).” Since being a felon in possession of a firearm is a violation of section 12021, subdivision (a)(1), we shall order that the Abstract of Judgment be corrected.
The trial court denied defendant’s motion for a new trial based on ineffective assistance of counsel and sentenced him to 20 years in prison.
Defendant appeals, contending (1) insufficient evidence supports his conviction for assault on Blanson with a semiautomatic firearm, and (2) the trial court erred in denying his motion for a new trial. We shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
I
Underlying Offenses
On April 12, 2004, Buntun, Blanson, Buntun’s five-year-old son, and Blanson’s 10-year-old daughter lived in an apartment on Calvine Road in Sacramento. At approximately 3:30 p.m., two of Buntun’s acquaintances, both of whom Buntun knew as “Ed,” came to the apartment. As Buntun was closing the door behind them, defendant, whom Buntun had never seen before, forced the door open and entered the apartment. Buntun and defendant “tussl[ed],” but Buntun backed off when he felt a gun in defendant’s hand.
Blanson, who had been in a back bedroom, entered the living room when she heard people bumping into the walls. When she saw defendant had a gun, she grabbed the children and huddled with them behind the kitchen table.
Defendant pointed the gun at Buntun’s head and asked him for money and “whatever [he] had.” Buntun gave defendant “somewhere around” $200 and “maybe three to four” “little sacks of marijuana,” each weighing approximately .5 grams.
Defendant then approached Blanson, gun in hand, and asked: “Where’s your money at, bitch?” Blanson told defendant she did not have any money. Defendant quickly searched the apartment, took Buntun’s cell phone, and left.
Both Buntun and Blanson described defendant’s gun as black.
When defendant left, Blanson immediately phoned 911. She told the operator she and Buntun had just been robbed by a six-foot-tall Black man in his twenties, wearing a black hooded sweatshirt and blue jean shorts. She said the robber pointed a gun at Buntun’s head, took Buntun’s phone and approximately $200, and fled on foot down Bruceville Road.
Moments later, Sacramento Police Officer John Montoya received a report of an armed robbery. The suspect was described “as a male black adult, approximately six feet tall, wearing a black sweater, hooded sweater, and blue jean[] shorts, headed on foot . . . on Bruceville.” A couple of minutes later, Officer Montoya spotted defendant walking down Bruceville Road, approximately 100 to 150 yards north of the victims’ apartment complex, wearing a black hooded sweatshirt and blue jean shorts. He watched defendant cross Bruceville Road, enter a field, and “pause[] for just a brief moment.” When defendant saw Officer Montoya, he began running down the center of Bruceville Road, cutting in and out of traffic. Officer Montoya attempted to follow defendant in his patrol car but was delayed by traffic.
Sergeant David Keys of the Sacramento County Sheriff’s Department was off-duty and stuck in traffic on Bruceville Road when he heard a siren and saw defendant “running through a field, [and] running from” Officer Montoya. Sergeant Keys got out of his car and grabbed defendant. Officer Montoya soon caught up and placed defendant under arrest.
Officer Montoya searched defendant and found Buntun’s cell phone, 5.84 grams of marijuana and 6.55 grams of rock cocaine in defendant’s pants pocket. The marijuana was packaged in 13 one-inch-by-one-inch baggies.
Less than one-half hour later, a community service officer searched the field defendant had previously entered and found a loaded .38 caliber semiautomatic black handgun, approximately $90 in cash, and a second cell phone.
Defendant testified on his own behalf at trial and admitted a prior conviction for “felony grand theft from a person” in 2002. He also admitted going to Buntun’s apartment on the afternoon of April 12, 2004, with Eric Brooks and Brooks’ cousin “E.D.” He said they drove to Buntun’s apartment so that he and Brooks could buy marijuana from Buntun. When he entered Buntun’s apartment, he had $100 “exact” and some cocaine. He did not have a gun, marijuana, or a cell phone. Buntun told defendant the marijuana cost $120 for a quarter ounce (just over 7 grams). Defendant decided to “shortchange” Buntun and gave him $90, and Buntun gave defendant a quarter ounce of marijuana. Defendant then asked Buntun if he could use Buntun’s cell phone. Buntun agreed, and defendant stepped outside to call a friend. After making the call, defendant became concerned that Buntun would hurt defendant when Buntun realized defendant “shortchanged” him, so defendant left with Buntun’s cell phone.
Defendant denied pushing his way into the apartment, tussling with Buntun, “pull[ing] a gun,” talking to Blanson, asking anyone for money or property, “go[ing] near a field” after leaving the apartment, or wearing a black sweatshirt. He ran when he saw Officer Montoya because he knew he was in violation of his probation by possessing cocaine and marijuana.
II
Motion For A New Trial
Following the verdict, new counsel was appointed to investigate whether defendant’s trial counsel rendered ineffective assistance. Thereafter, defendant moved for a new trial on the grounds that trial counsel rendered ineffective assistance by failing to voir dire the jury, sanitize defendant’s prior grand theft conviction, adequately cross-examine the People’s witnesses, prepare defendant for cross-examination, and give an opening statement and closing argument. Trial counsel filed an opposition to defendant’s motion, disputing defendant’s contentions and attempting to explain his actions.
Following an evidentiary hearing, the trial court denied defendant’s motion. Although the court found that “it is arguable that [trial counsel’s] representation . . . fell short of the required standard,” it concluded defendant failed to establish that “it is reasonably probable that a more favorable determination would have resulted in the absence of [counsel’s] alleged failings.” The court reasoned that “defendant’s actions as testified to by Officer Montoya, Sergeant Keys and . . . Blanson, and the physical evidence found on defendant’s person and in the field provided overwhelming evidence of defendant’s guilt. Defendant’s incredible testimony added further weight to the evidence against him. [¶] The Court is satisfied that no voir dire, opening statement, cross examination or closing argument would have caused a result more favorable to the defendant.”
DISCUSSION
I
Sufficiency Of The Evidence
Defendant argues his “conviction for assaulting Blanson was not based on sufficient evidence” because “he never pointed the gun directly at her or in her general vicinity,” “tried to use it against her as a club or bludgeon,” or “threatened to use the gun against her . . . if she failed to comply with his demands.” We are not persuaded.
The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.)
“‘“An assault is an act done toward the commission of a battery”’ and must ‘“immediately”’ precede the battery. [Citation].” (People v. Williams (2001) 26 Cal.4th 779, 786.) “[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Id. at p. 788.)
“Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime.” (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) For example, “when the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury [is] fully warranted in finding that such was his intention.” (People v. McMakin (1857) 8 Cal. 547, 549.)
A defendant’s intent to use his weapon against another may be inferred from his words and conduct. (People v. Thompson (1949) 93 Cal.App.2d 780, 782.) In People v. Thompson, the defendant pointed a gun downward between two deputies, ordering them to raise their hands. (Ibid.) The court reasoned that the “demand that the officers raise their hands was an implied threat,” and noted that, while the defendant “did not point the gun directly at them or either of them, it was in a position to be used instantly.” (Ibid.) The court concluded that the defendant’s actions were sufficient to support his conviction on two counts of assault with a deadly weapon. (Id. at pp. 782-783.)
In this case, defendant had the gun in his hand when he demanded Blanson’s money. When he made his demand, Blanson was unarmed and huddled behind a table with the children. Thus, while defendant did not point his gun at Blanson, it was in a position to be used instantly and before Blanson could defend herself. Defendant’s assertion that he did not threaten to use the gun against Blanson is without merit. Defendant’s demand for Blanson’s money, which he punctuated with the epithet, “bitch,” implied that he would shoot Blanson if she refused to give him her money.
Defendant’s conviction for assaulting Blanson with a semiautomatic firearm is supported by substantial evidence.
II
Motion For A New Trial/Ineffective Assistance Of Counsel
Defendant contends the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel. In doing so, he renews his claims that trial counsel rendered ineffective assistance by failing to (1) “sanitize [his] prior conviction for grand theft,” (2) impeach Buntun, and (3) give an opening statement and closing argument. He argues that absent counsel’s failings there is a reasonable probability that he would not have been convicted of robbery, burglary, either assault, or being a felon in possession of a firearm. We are not persuaded.
The burden of proving a claim of ineffective assistance of counsel is on the defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To meet this burden, the defendant must prove two things. First, he must show that his counsel’s representation was deficient, i.e., it “‘fell below an objective standard of reasonableness . . . under prevailing professional norms.’” (Id. at p. 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694].) Second, he must show that counsel’s deficient representation subjected him to prejudice, i.e., that there is a reasonable probability that but for counsel’s failings, he would have obtained a more favorable result. (Id. at pp. 217-218.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Id. at p. 218, quoting Strickland v. Washington, supra, 466 U.S. at pp. 693-694 [at pp. 697-698].)
“‘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.]” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
In reviewing the denial of a motion for a new trial raising ineffective assistance of counsel claims, we uphold the trial court’s factual findings if they are supported by substantial evidence, and we exercise our independent judgment on the legal issues. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
A
Prior Conviction
Prior to trial, the People moved in limine to (1) impeach defendant with his prior grand theft conviction should he choose to testify, and (2) introduce certified copies of the superior court file of the prior conviction and defendant’s rap sheet to establish his status as an ex-felon, an element of the felon in possession of a firearm offense. In addition to establishing defendant’s prior grand theft conviction, the court file and rap sheet revealed that (1) defendant was initially charged with second degree robbery, “a serious felony within the meaning of Penal Code [s]ection 1192.7(c),” (2) he pled no contest to grand theft as part of a plea agreement and was sentenced to 110 days in jail, and (3) he had previously been arrested for failing to pay a public transit fare and failing to appear.
Trial counsel indicated he had no objection to the introduction of the prior conviction for impeachment or the introduction of the documents to prove defendant’s status as an ex-felon. Nor did he request that the court sanitize the nature of the prior conviction or order that the court file or rap sheet be redacted to exclude information unrelated to defendant’s status as an ex-felon.
On appeal, defendant contends his “[t]rial counsel was ineffective in failing to sanitize [his] prior conviction for grand theft.” In doing so, he faults trial counsel for failing to (1) object to the use of his prior conviction for impeachment purposes, (2) “request the court . . . sanitize the nature of the prior, given its similarity to the robbery charge,” and (3) request the court file and rap sheet be redacted to exclude information unrelated to the purpose for which they were being introduced. We address each of counsel’s alleged omissions in turn.
Defendant’s recent conviction for grand theft, a crime involving moral turpitude, was admissible to attack his credibility. (Evid. Code, §§ 788, 352; People v. Campbell (1994) 23 Cal.App.4th 1488, 1492.) As the trial court observed at the hearing on the People’s motions in limine, the prior conviction “certainly relates to [defendant’s] honesty and credibility” and is “[p]retty recent so it hasn’t been attenuated by time.” Defendant does not offer any basis for excluding the prior conviction for impeachment purposes, nor do we discern one from the record. The prior conviction was also admissible to establish defendant’s status as an ex-felon, an element of the felon in possession of a firearm offense. (Cal. Const., art. I, § 28, subd. (f).) Counsel is not ineffective for failing to make a meritless objection. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)
Defendant next asserts that counsel was ineffective in failing to request that the court “sanitize” the nature of the prior conviction, presumably by prohibiting the People from specifying the crime and instead merely referring to the prior as a “felony involving theft” or as an undesignated felony.
Defendant is correct that trial courts have discretion to sanitize prior convictions introduced for impeachment. (See, e.g., People v. Massey (1987) 192 Cal.App.3d 819, 825; People v. Foreman (1985) 174 Cal.App.3d 175, 182.) However, we need not decide whether counsel’s failure to request that the court sanitize the nature of the prior conviction fell below an objective standard of reasonableness here because defendant has failed to establish there is a reasonable probability that he would have obtained a more favorable result had the court done so.
Defendant also asserts that the nature of his prior conviction should have been excluded under People v. Valentine (1986) 42 Cal.3d 170. There, the court held that where a defendant charged with possession of a firearm by a felon offers to stipulate to the prior conviction, the nature of the prior felony should be withheld from the jury. (Id. at p. 173.) Here, defendant did not stipulate to the prior conviction. To the extent defendant asserts that counsel was ineffective in failing to advise him to do so, he cannot establish he was prejudiced by counsel’s failure. Even if defendant had stipulated to the prior conviction, it does not follow that the nature of the prior conviction would have been kept from the jury. In addition to establishing defendant’s status as an ex-felon, the prior conviction was also admissible to impeach his credibility. (Evid. Code, §§ 788, 352.) As previously mentioned, trial courts have discretion to sanitize prior convictions introduced for impeachment. (See, e.g., People v. Massey, supra, 192 Cal.App.3d at p. 825; People v. Foreman, supra, 174 Cal.App.3d at p. 182.) There is no requirement that they do so in every case.
We can discern no benefit to defendant in telling the jury he was previously convicted of a “felony involving theft” as opposed to grand theft; nor has defendant suggested one. Either way, the jury would have learned defendant had been convicted of “theft.” And had the jury simply been told that defendant had been convicted of a “felony” or a “felony involving moral turpitude,” they would have been left to guess whether the prior conviction was for a similar or more serious crime. (People v. Foreman, supra, 174 Cal.App.3d at p. 182.) Any benefit to defendant from such a description in this case is purely speculative.
In addition, as the trial court noted, even if counsel was ineffective, defendant could not possibly have been prejudiced given the overwhelming evidence of his guilt. He admitted that he was at Buntun and Blanson’s apartment when the robbery, burglary, and assaults were alleged to have occurred. Both Buntun and Blanson testified that defendant had a black gun, which he pointed at Buntun; defendant demanded Buntun’s money and property; Buntun gave him money; and defendant took Buntun’s cell phone. Blanson immediately called 911 and reported she and Buntun had been robbed at gunpoint. Her testimony at trial was consistent with her statements to the 911 operator. A couple of minutes after Blanson called 911, Officer Montoya observed defendant walking down Bruceville Road. When defendant saw Officer Montoya, he ran in the opposite direction. Buntun’s cell phone was found in defendant’s pants pocket, along with numerous baggies of marijuana, and cash and a gun matching the one described by Blanson and Buntun were found in the field that both Officer Montoya and Sergeant Keys observed defendant enter.
Blanson testified Buntun retrieved something from a closet and gave it to defendant. She initially stated she did not know what Buntun retrieved, but later agreed it was money.
On this record, there is no reasonable probability defendant would have obtained a more favorable result had the trial court sanitized the nature of his prior grand theft conviction.
Defendant also asserts that counsel was ineffective in failing to request that the court file and rap sheet be redacted to exclude information unrelated to establishing his ex-felon status. The People respond by noting that the documents also contain information favorable to defendant, i.e., he had applied for various jobs and “had no other serious offenses.” Accordingly, they argue that “on balance” defendant was not prejudiced by the admission of the extraneous information. We agree defendant was not prejudiced by the admission of the extraneous information.
In addition to the reason advanced by the People, defendant’s prior arrests were for relatively minor offenses --failure to pay a public transit fare and failing to appear. And, given the overwhelming evidence of defendant’s guilt, we find there is no reasonable probability defendant would have obtained a better result had the information unrelated to proving his ex-felon status been redacted. (See pp. 14-15, ante.)
B
Cross-Examination Of Buntun
On the date of the incident, Buntun told police that defendant took cash and a cell phone; Buntun did not mention the marijuana. Several weeks later, when an investigator asked Buntun “how his fingerprints could be on some baggies of marijuana” found in defendant’s pants pocket, Buntun responded that defendant ordered him to pick up some baggies of marijuana off the floor, which he did. He said he did not know where the marijuana came from. Buntun eventually admitted the marijuana belonged to him. Trial counsel did not ask Buntun about his prior inconsistent statements during cross-examination.
Defendant complains that counsel was ineffective by failing to impeach Buntun with his prior inconsistent statements to law enforcement and to expose him as a drug dealer. He argues that doing so would have “ruined [Buntun’s] credibility, depriving the [People] of its central witness” and enhanced defendant’s credibility. We need not decide whether counsel’s cross-examination of Buntun fell below an objective standard of reasonableness because defendant has failed to establish that counsel’s representation subjected him to prejudice.
Contrary to defendant’s assertion, Buntun’s credibility was not a “prerequisite” for defendant’s convictions for robbery, burglary, assaulting Buntun, and being a felon in possession of a firearm. Blanson’s testimony largely corroborated Buntun’s. Blanson testified that on the afternoon of April 12, 2004, defendant entered the apartment she shared with Buntun, pointed a black gun at Buntun’s head, and demanded money and property. Buntun retrieved money from the hall closet and gave it to defendant. Defendant took Buntun’s cell phone before leaving the apartment. Blanson’s testimony at trial was consistent with the information she provided to the 911 operator moments after the crimes were committed.
As the trial court found, Blanson’s testimony, along with that of “Officer Montoya, Sergeant Keys . . . and the physical evidence found on defendant’s person and in the field provided overwhelming evidence of defendant’s guilt.”
C
Opening Statement And Closing Argument
Finally, defendant contends that counsel was ineffective in failing to give an opening statement and closing argument. He argues that “[b]y simply pointing the jury to the lack of evidence and the elements of assault, trial counsel could have made a compelling argument that there was insufficient evidence to prove the Blanson assault.” He also asserts that “[t]rial counsel could have undermined the [People’s] case by using opening and closing to . . . emphasize relevant legal rules, such as the prosecution’s burden of proof, the presumption of innocence, and the reasonable doubt standard, and instructions regarding the credibility of witnesses.” As we shall explain, we conclude that defendant has failed to establish that he would have obtained a more favorable result had counsel given an opening statement and that counsel’s tactical reasons for deciding to forego closing argument were reasonable.
Counsel explained that he “reserved the opening statement until after the [People] had presented their case in chief, and especially the testimony of Mr. Buntun and Ms. Blanson. I wanted to consult with [defendant] . . . .” As defendant points out, “[t]his merely explains why counsel reserved opening [statement] until a later time; it does not explain why he did not give one at all.” However, even when there is no reasonable tactical reason for counsel’s failure to give an opening statement, the defendant still must show counsel’s failure subjected him to prejudice. (See, e.g., In re Arena (1996) 12 Cal.4th 694, 727-728.) We agree with the trial court’s conclusion that “no . . . opening statement . . . would have caused a result more favorable to the defendant.” As the trial court explained: “[D]efendant’s actions as testified to by Officer Montoya, Sergeant Keys and . . . Blanson, and the physical evidence found on defendant’s person and in the field provided overwhelming evidence of defendant’s guilt.”
As for counsel’s decision to waive closing argument, counsel explained that defendant’s testimony was “folly” and “not credible,” defendant perjured himself on the stand, and “[a]ny closing argument . . . would have left the door open for the [People] to make a relentless rebuttal argument.” “Rather than risk the perils of navigating [defendant’s] testimony through the overwhelming sea of facts, witnesses, and evidence against him, it was decided not to give closing arguments.”
With respect to counsel’s assertion that defendant perjured himself on the stand, counsel explained that prior to trial, defendant told him that when he (defendant), Eric Brooks and “E.D.” arrived at Buntun’s apartment, “Eric Brooks got a gun out of the trunk and told [defendant] that if he did not take the gun and follow them in, [defendant] would ‘not see his son again.’ [Defendant] took the gun and followed them into the apartment.” In contrast, at trial, defendant “denied possessing or using a handgun. . . . He said he paid Buntun $90 for the marijuana, shortchanging him for the $120 value of the same. He admitted to walking off with Buntun’s cell phone. . . . He denied robbing Buntun of money or marijuana. . . . [Defendant] had never told [trial counsel] this version of the events.”
“[A]ttorneys may not present evidence they know to be false or assist in perpetrating known frauds on the court . . . .” (People v. Riel (2000) 22 Cal.4th 1153, 1217.) Although “they may ethically present evidence that they suspect, but do not personally know, is false,” doing so “may raise difficult tactical decisions -- if counsel finds evidence incredible, the fact finder may also . . . .” (Ibid.)
Here, counsel knew significant portions of defendant’s testimony were false based on defendant’s own statements, and therefore, was precluded from relying on those portions in closing argument. (People v. Riel, supra, 22 Cal.4th at p. 1217.) While counsel was not precluded from relying on portions of defendant’s testimony that he suspected, but did not personally know, were false, his tactical decision not to do so here was reasonable. If he found defendant’s testimony incredible, the jury may have reached a similar conclusion. (See ibid.) Thus, emphasizing or repeating those portions of defendant’s testimony in closing argument may have further damaged defendant’s case.
As defendant points out, counsel could have steered clear of defendant’s testimony and simply “emphasize[d] relevant legal rules . . . .” As trial counsel explained, that “would have left the door open for the [People] to make a relentless rebuttal argument.” While reasonable people may differ as to whether there was something to gain from giving a closing argument that simply emphasized the “relevant legal rules,” we find counsel’s decision not to do so in order to prevent the People from making a rebuttal argument reasonable under the circumstances.
DISPOSITION
The superior court is directed to prepare an amended abstract of judgment reflecting that defendant was convicted being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1), not section “12022(a)(1),” and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
NICHOLSON , J.
CANTIL-SAKAUYE , J.