Opinion
B194689
6-30-2008
THE PEOPLE, Plaintiff and Respondent, v. THADDEUS FULLER, Defendant and Appellant. In re THADDEUS FULLER on Habeas Corpus.
Law Offices of Rene Sanz and Rene Sanz for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Thaddeus Fuller appeals from the judgment entered following a jury trial that resulted in his conviction for inflicting corporal injury upon his childs parent. Fuller was sentenced to a prison term of 20 years.
Fuller contends: (1) the trial court abused its discretion by admitting evidence of his prior commission of acts of domestic violence; (2) the prosecutor committed misconduct during closing argument; (3) his Marsden motion was improperly denied; and (4) the evidence was insufficient to support the conviction. In a petition for writ of habeas corpus, which we consider concurrently herewith, Fuller contends that his counsel was ineffective. We affirm Fullers conviction and deny the writ petition.
People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Peoples evidence.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following.
(i) The charged offense: May 14, 2006 Mothers Day beating.
Fuller and Tiasha R. were romantically involved for approximately seven years, and had two children together before breaking up in approximately 2004.
In 2006, Jannis Wilson lived in Tiashas apartment complex. Wilson did not know Tiasha or Fuller. On May 14, 2006, at approximately 10:00 p.m., Wilson heard Tiasha knocking on a neighbors door screaming for help. Tiasha then knocked on Wilsons door, screaming, "Call 911, emergency." Tiashas face was bleeding "everywhere, from her eye, her nose, her mouth[.]" Tiasha was "unbelievably scared" and appeared to be "running for her life." Wilson called 911. Tiasha stated she had been beaten by her boyfriend inside her apartment.
Los Angeles County Sheriffs Deputy Jason Duron responded to the call. He met Tiasha at the apartment complex gate. She was "hysterical and badly beaten up." Her right eye was almost swollen closed and she had numerous bumps and scratches over her face. Tiasha stated that she and Fuller had been celebrating Mothers Day and he had been drinking alcohol. They argued. He became very angry and knocked her to the ground. He then choked her and punched her in the face multiple times. When Fuller moved off Tiasha, she fled the apartment.
Deputy Duron observed Tiashas apartment. There was blood on the doorstep, on the door, and on the inside carpet. Broken items and food were on the floor.
As a result of the beating, Tiasha suffered fractures around her eye socket and to her nasal bone.
On May 26, 2006, Tiasha left a message for Detective Mark Wedel stating that she did not wish to pursue charges against Fuller because he had not contacted her since the incident. On June 1, 2006, Tiasha changed her mind, telling Detective Wedel that she wanted to "pursue this case" because she knew her injuries were very serious. Her description of the attack to Detective Wedel was generally consistent with her earlier description to Deputy Duron.
At trial, Tiasha recanted her account. She claimed that on Mothers Day, she had been in a fistfight with Fullers then — current girlfriend, Yolanda, during which she suffered the injuries to her eye socket and nose. She fabricated the story that Fuller committed the attack because she was angry that his girlfriend had attacked her.
(ii) Prior domestic violence.
The People introduced evidence of prior domestic violence by Fuller against Tiasha pursuant to Evidence Code section 1109, as follows.
A. November 7, 1999 assault at the shopping mall.
On November 7, 1999, Fuller assaulted Tiasha at a Lakewood shopping mall. Tiasha and Fuller had argued, and she was afraid he would hurt her if she left the mall with him. Tiasha, who was carrying their 15-month old daughter, attempted to walk away from Fuller. He grabbed her from behind by the neck and forced her out of the mall. She tried to alert passersby to call police. Fuller told her, "[S]hut the fuck up, you are going to die tonight." Fuller forced Tiasha into his car, hitting her head against the door. When the car was blocked by traffic, Tiasha fled from the vehicle and called police. A deputy who responded to the scene observed a cut on Tiashas neck and a scratch on her cheek.
At trial on the instant charges, Tiasha denied making the emergency call and did not recall Fuller threatening or harming her at the mall.
B. November 11, 1999 baseball bat assault.
Four days later, Fuller beat Tiasha "`all over [her] legs" with an aluminum baseball bat, in her apartment. A few hours later, Tiasha called police because she wanted to retrieve belongings from her apartment, but was afraid Fuller would be waiting for her there. A Long Beach Police officer who responded to her call observed an aluminum bat and items which had been strewn about the apartment. Tiasha subsequently wrote the district attorneys and public defenders offices claiming Fuller had not kidnapped, threatened, or beaten her with the baseball bat, although he did punch her. The marks on her legs were caused by running into a doorway. As a result of the November 11 beating, Fuller was convicted of committing domestic violence.
At trial on the instant charges, Tiasha testified she did not recall the incident.
C. July 31, 2003 beating.
On July 31, 2003, Fuller and Tiasha argued about Tiashas coming home late from work. Fuller threatened to kill her. Tiasha, who was pregnant, called police. Long Beach Police Officer Steven Vanden Bosch was dispatched to Tiashas residence. Vanden Bosch advised her to obtain a restraining order and change her locks, and departed. At approximately 10:00 p.m., Fuller returned to Tiashas apartment. When she refused to let him in, he pushed his way in through a window screen. Tiasha dialed 911 but Fuller pulled the telephone from her hand, stating, "`Bitch, are you playing with me?" He grabbed Tiasha by the hair and tackled her to the ground. She crawled to a couch and attempted to protect her abdomen with a pillow. Fuller again grabbed her by the hair and punched her temple with his fist. He departed after dragging her into another room by the hair. Police responded to the incomplete 911 call. They observed the broken screen and discovered Fuller near the apartment, attempting to flee. In a field showup, Tiasha did not identify Fuller, stating it was "not him." Later in her apartment, however, she explained she had lied and Fuller was the assailant. She was afraid that if Fuller went to prison, he would be unable to provide for her, their child, and their unborn child.
At trial on the instant charge, Tiasha testified she did not recall much about the incident, but admitted that Fuller pushed his way in through the screen when she called 911.
b. Defense evidence.
Yolanda Manu, who was Fullers girlfriend at the time of the charged offense, told a defense investigator that on Mothers Day 2006, Tiasha challenged her to a fight. They engaged in a fistfight outside Tiashas apartment.
c. Rebuttal.
The People introduced a letter that had been sent to the district attorneys office by "Vanessa R. Jackson." Jackson related that on Mothers Day 2006, she was involved in an altercation with Tiasha. They had a longstanding feud. After a telephone argument, the women decided to fight. Jackson went to Tiashas residence so they could "settle matters." The women fought, both suffering injuries to their eyes. Enclosed with the letter was a photograph purporting to show Jacksons eye injury.
2. Procedure.
Trial was by jury. Fuller was convicted of inflicting corporal injury upon his childs parent (Pen. Code, § 273.5, subd. (a)). The jury found Fuller personally inflicted great bodily injury on Tiasha during commission of the offense (§ 1192.7, subd. (c)(8)). It further found Fuller had suffered a prior conviction for making criminal threats (§ 422), a serious or violent felony (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)); had suffered a prior conviction for domestic violence (§ 273.5, subd. (e)(1)); and had served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Fuller to a term of 20 years in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Fuller appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Admission of evidence of prior incidents of domestic violence.
At trial, defense counsel did not object to admission of evidence regarding Fullers prior commission of domestic violence against Tiasha in 1999 and 2003. Fuller now contends the evidence was improperly admitted and was used "in a blatantly unjust manner" by the prosecution.
The People are correct that, because Fuller did not object to the evidence below, his claim has not been preserved for appeal. (Evid. Code, § 353, subd. (a); People v. Monterroso (2004) 34 Cal.4th 743, 773; People v. Gurule (2002) 28 Cal.4th 557, 626; People v. Earp (1999) 20 Cal.4th 826, 878; People v. Hart (1999) 20 Cal.4th 546, 615.) For the same reason, Fuller cannot now complain that the trial court erroneously failed to hold an Evidence Code section 402 hearing on the issue of the admissibility of the prior crimes evidence. A trial court has no sua sponte duty to exclude evidence (People v. Carpenter (1997) 15 Cal.4th 312, 411) and therefore has no duty to conduct an Evidence Code section 402 hearing on admissibility where no objection to the evidence has been made.
Fullers claim fails on the merits as well. Evidence of a defendants prior criminal acts is ordinarily inadmissible to prove his or her propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a); People v. Reyes (2008) 160 Cal.App.4th 246, 251.) However, by enacting Evidence Code section 1109, the Legislature created an exception to this rule in cases involving domestic violence. (People v. Reyes, supra, at p. 251; People v. Falsetta (1999) 21 Cal.4th 903, 911; People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) Evidence Code section 1109, subdivision (a)(1) provides, in pertinent part, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Thus, under Evidence Code section 1109, evidence of a defendants prior commission of domestic violence is admissible to show the defendants propensity to commit the charged crime unless its probative value is outweighed by its prejudicial effect. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1309, 1313-1314.)
A determination under Evidence Code section 352 is entrusted to the sound discretion of the trial court, and will not be overturned except upon a finding of manifest abuse, i.e., a conclusion that the decision was palpably arbitrary, capricious, or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Jennings, supra, 81 Cal.App.4th at p. 1314.) Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the likelihood of confusing or distracting jurors from the main inquiry before them, the remoteness of the prior acts, and whether the defendant has already been convicted and punished for the prior offense. (People v. Rucker, supra, 126 Cal.App.4th at p. 1119; People v. Falsetta, supra, 21 Cal.4th at p. 917 [discussing Evidence Code section 352 analysis in regard to admission of prior sex crime evidence under Evidence Code section 1108].)
There is no question that the evidence was highly probative of Fullers propensity to commit domestic violence. In enacting Evidence Code section 1109, "the Legislature found that in domestic violence cases evidence of prior acts is particularly probative in demonstrating the propensity of the defendant. `"The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases." (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706; cf. People v. Falsetta, supra, 21 Cal.4th at p. 915.) Here, the evidence demonstrated Fuller had made similar attacks on the same victim on prior occasions when they had argued. The earlier attacks tended to show Fullers propensity to attack Tiasha when he became angry during their disagreements. (See People v. Williams (2008) 159 Cal.App.4th 141, 147.) Additionally, the prior incidents revealed Tiashas pattern of calling police, and then later recanting her account of the violence. The evidence was therefore highly relevant to explain her trial testimony that Manu, rather than Fuller, was her attacker.
There was substantial certainty that Fuller actually committed the prior attacks on Tiasha, and the evidence was unlikely to confuse the jury. The testimony was straightforward and the prior incidents were well-documented. The jury was aware Fuller was convicted of making criminal threats and inflicting corporal injury on his childrens parent as a result of the July 2003 attack, and of misdemeanor domestic violence as a result of the November 1999 incidents. Accordingly, there was no likelihood it would have convicted to punish Fuller for the prior crimes. (See People v. Jennings, supra, 81 Cal.App.4th at p. 1315; People v. Morton (2008) 159 Cal.App.4th 239, 248.) None of the prior incidents were unduly inflammatory; the abuse was similar in the prior and current attacks; and Tiashas injuries in the charged crime appear to have been worse than in the prior crimes. (See People v. Williams, supra, 159 Cal.App.4th at p. 147; People v. Jennings, supra, at p. 1315; cf. People v. Morton, supra, at pp. 247-248.) The prior incidents occurred in 2003 and 1999, approximately three years and six and one-half years, respectively, before the instant crime. They were not remote in time.
While the evidence was no doubt harmful to the defense case, this fact does not establish prejudice as contemplated by Evidence Code section 352. All evidence of prior domestic violence offenses admitted pursuant to Evidence Code section 1109 tends to prove the defendants propensity to commit similar offenses. However, this is not the type of "prejudice" against which Evidence Code section 352 protects. "`[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. . . . The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Morton, supra, 159 Cal.App.4th at p. 249.) Further, the trial court instructed the jury with CALCRIM No. 852, which explained that even if jurors concluded Fuller committed the prior domestic violence, that evidence was insufficient by itself to prove his guilt of the charged offense.
People v. James (2000) 81 Cal.App.4th 1343, cited by Fuller, does not assist him. In James, the court held that the prosecutions burden of proving the elements of a domestic violence offense was unconstitutionally reduced by use of the pre-1999 versions of CALJIC Nos. 2.50.02 and 2.50.1. Those instructions permitted the jury to find by a preponderance of evidence that the defendant had abused the victim in the past, and then allowed the jury to infer guilt of the charged offense based upon the prior abuse alone. (Id. at pp. 1345-1347.) Fullers jury was not given the instructions at issue in James, but instead was correctly instructed that commission of prior acts of domestic violence was "only one factor to consider" and was insufficient, by itself, to prove Fullers guilt. Thus, James has no application here.
Fuller cursorily argues that a document reflecting his 1999 plea was improperly introduced into evidence. He also implies that evidence of the prior crimes should have been limited to a certified copy of the convictions, rather than testimony about the incidents themselves. Fuller did not object below to admission of this evidence, and has therefore waived his contentions. In any event, Fullers failure to provide any substantial argument or citation to authority to support these contentions on appeal amounts to a waiver of the points. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1364, fn. 6; People v. Gray (1998) 66 Cal.App.4th 973, 994; People v. King (1991) 1 Cal.App.4th 288, 297, fn. 12.) Accordingly, we decline to address them.
2. Prosecutorial misconduct.
Fuller next contends that the prosecutor committed misconduct during closing argument. He is incorrect. "`"A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ` "`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Gurule, supra, 28 Cal.4th at p. 657.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa, supra, at p. 841; People v. Gurule, supra, at p. 657.) The prosecutors statements must be viewed in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
a. Use of the word "crimes."
During argument, the prosecutor suggested that Tiasha was "living in denial" about her relationship with Fuller, and that she was a "smart lady . . . who is making foolish choices." The prosecutor suggested that some jurors might be annoyed or disgusted by Tiashas denials that the abuse occurred. The prosecutor continued, "But you have to remember that disgust and annoyance with Tiasha and how shes treating it does not equal acquittal. It does not mean that he is not guilty beyond a reasonable doubt for the crimes that hes committed, and Ill go into it and show you why, notwithstanding Tiasha and her testimony before you here during the course of last week, why the defendant is guilty of the charge that hes been charged with." (Italics added.) In a cursory argument, Fuller complains that by using the word "crimes" the prosecutor asked the jury "to in essence re-convict the Defendant for the prior acts crimes for which he already suffered criminal penalties."
Fullers claim is forfeited because he made no objection to the argument below. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury[,]" or forfeit the claim on appeal. (People v. Brown (2003) 31 Cal.4th 518, 553; People v. Stanley (2006) 39 Cal.4th 913, 953; People v. Samayoa, supra, 15 Cal.4th at p. 841.)
In any event, the claim fails on the merits. As explained ante, Tiasha denied the charged incident occurred and likewise denied or could not recall the prior incidents. As already discussed, evidence of the prior domestic violence was properly admitted and was probative on the question of whether the charged crime occurred. In its evaluation of the evidence, the jury was required to determine whether the prior incidents of domestic violence occurred. Thus, understood in context of the evidence and the argument as a whole, the prosecutor was simply making the unobjectionable point that despite Tiashas denials, Fuller had in fact abused her on several occasions, including the incident that formed the basis for the current charge. There was no likelihood the jury would have understood the prosecutor to suggest Fuller should be punished again for past misdeeds, especially given that in the same sentence the prosecutor urged Fuller was "guilty of the charge that hes been charged with." The argument did not constitute misconduct.
b. Reference to Fullers flight.
During argument the prosecutor discussed the flight instruction and argued, "You cant just say if someone ran, hes guilty. . . . You use it in combination with all the other evidence to see if it corroborates the other evidence and points toward his guilt, and you get to assign whatever level of significance to his flight that you want to. [¶] But I also want to point out that it wasnt just in this case that he fled and fled with the kids this time." The prosecutor pointed out that in the prior incidents, Fuller had fled by the time police arrived. "Time and time again, this man assaults Tiasha [R.], runs, she reports it, she denies it later, but hes always caught." Fuller complains that this "devastating" argument was improper because the prosecutor told the jury that the "current flight instruction in the jury instructions could and should be applied to the prior acts evidence[.]"
Because there was no objection to the argument at trial, the claim is waived. (People v. Brown, supra, 31 Cal.4th at p. 553.) On appeal, Fuller fails to cite any authority or meaningful argument explaining why the prosecutors comments were improper. We see nothing objectionable in the prosecutors suggestion that Fuller had a pattern of beating Tiasha and then fleeing. The argument did not constitute misconduct.
c. Reference to pattern of abuse.
Fuller next complains about the following portion of the prosecutors argument: "So you get to use . . . that previous conduct to find that [Fuller] most likely did it in this case as well. Hes done it before; he did it again. Its his pattern, its his habit, its his custom, and so is Tiasha [R.s] denial." Fuller urges that the "prosecutor knowingly misused the evidence for an impermissible purpose, to impeach the victim while at the same time listing a bunch of different ways in which the jury could consider the evidence, without mentioning the only actual way: propensity." Fullers complaint is, again, waived for failure to object below. (People v. Brown, supra, 31 Cal.4th at p. 553.) Fullers argument on this point — reproduced in its entirety here — is devoid of citation to authority or meaningful argument, and amounts to a waiver of the points on appeal. (People v. Roberto V., supra, 93 Cal.App.4th at p. 1364, fn. 6; People v. Gray, supra, 66 Cal.App.4th at p. 994; People v. King, supra, 1 Cal.App.4th at p. 297, fn. 12.) In any event, we see nothing objectionable in the prosecutors impeachment of the victims trial testimony with the fact she repeatedly denied Fullers abuse. Contrary to Fullers argument, it is clear the prosecutor was arguing that Fullers prior crimes showed his propensity to commit domestic violence against Tiasha.
d. Reference to expert opinion.
The prosecutor argued that Tiasha was intentionally vague during her testimony because "she doesnt want you to find [Fuller] guilty of what hes done to her, for whatever reason it may be, and that reason is wrapped up in the psychology of domestic violence, okay. [¶] You didnt hear from any experts to go into detail about what the psychology of domestic violence is, and, in fact, you dont need to hear from an expert in a case like this because you have the physical evidence of the other side of the psychology of the domestic violence, which is the physicality of domestic violence, what the defendant did to her."
Fuller contends that the prosecutor made an impermissible reference to evidence outside the record, i.e., expert testimony regarding the psychology of domestic violence. Again, because there was no objection below, the claim is waived. (People v. Brown, supra, 31 Cal.4th at p. 553.) Assuming arguendo that the issue is nonetheless cognizable, and also assuming arguendo that Fullers exceptionally cursory treatment of the issue on appeal is sufficient to raise it, we see no reversible error. A prosecutor commits misconduct by referring during argument to matters outside the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Pinholster (1992) 1 Cal.4th 865, 948.) At worst, the prosecutors comment suggested that something about the "psychology of domestic violence" makes domestic violence victims reluctant to see their abusers found guilty. We assume arguendo that this is a fact beyond the common experience of jurors. However, the prosecutors comment cannot be equated with an egregious pattern of conduct that denied Fuller due process, nor can it be described as deceptive or reprehensible. To the contrary, the prosecutor appears to have made a slip of the tongue which he immediately attempted to correct, pointing out that no expert testimony had been offered and suggesting that jurors should concentrate on the physical evidence. There is no reasonable probability that a result more favorable to Fuller would have been reached had the prosecutor not made the lone reference to the psychology of domestic violence. (People v. Crew (2003) 31 Cal.4th 822, 839.)
3. Trial courts failure to bifurcate prior conviction allegations.
During trial, the parties informed the court that the prior conviction allegations would not be bifurcated. Fuller asserts that defense counsel erred by failing to request bifurcation, and "it was error for the court to allow that to happen." We address Fullers claim that counsel was ineffective for failing to move for bifurcation post. Any contention that the trial court erred by failing to sua sponte order bifurcation is meritless. A trial court has no sua sponte duty to bifurcate a trial on a defendants prior conviction allegations. (People v. Trujillo (1984) 154 Cal.App.3d 1077, 1090-1091.) Therefore, in the absence of a request, the trial court had no duty to order bifurcation.
4. Marsden motion.
a. Additional facts.
On the second day of trial, during jury selection, Fuller indicated he had complaints about the public defender representing him. First, Fuller stated that defense counsel had not given him a copy of the transcript of his preliminary hearing. Defense counsel explained that Fuller had only asked for the transcript that day, and that counsel would provide him with a copy. Second, Fuller asserted that he believed charges against him should have been dismissed for lack of evidence, but defense counsel had failed to file a section 995 motion to dismiss. Defense counsel stated that as an officer of the court, he could not file frivolous motions, and in his view there was sufficient evidence adduced at the preliminary hearing to bind Fuller over for trial. Additionally, there was no basis to move to suppress various statements as Fuller suggested. Third, Fuller complained that defense counsel was "telling [Fuller] he was guilty for something I didnt do" and he did not wish to go "to trial with him if hes not going to fight for me." Defense counsel explained that he did not know whether Fuller was guilty, in that counsel had not been present at the crime scene, but had not told Fuller he believed him to be guilty. He had, however, shown Fuller "horrible photos" that would be introduced into evidence by the People, explained that he had tried but been unable to reach Fullers mother to corroborate Fullers alibi, and advised Fuller that based on the evidence the case was "not looking good for him." Counsel stated he intended to do his best to win the case, but believed the evidence was unfavorable and had therefore advised Fuller to seriously consider the Peoples offer of 10 years. The trial court concluded that there was no legal basis to appoint new counsel. It found Fullers attorney was "sufficiently, adequately, and ethically representing [Fullers] best interest right now," and denied the Marsden motion.
b. Discussion.
"When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsels inadequacy. [Citations.] `A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1190; People v. Barnett (1998) 17 Cal.4th 1044, 1085.) We review the trial courts decision declining to discharge appointed counsel under the deferential abuse of discretion standard. (People v. Cole, supra, at p. 1190; People v. Barnett, supra, at p. 1085.) Denial is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair his or her right to assistance of counsel. (People v. Barnett, supra, at p. 1085.)
The trial court did not err by denying Fullers Marsden motion, nor was its inquiry into the Marsden request improperly handled, as Fuller appears to assert. The trial court gave Fuller ample opportunity to relate purported instances of defense counsels inadequacy, and defense counsel responded to each point. The facts disclosed by Fuller did not demonstrate any inadequacy in counsels representation, nor does the record suggest that counsel and Fuller had become embroiled in an irreconcilable conflict. To the contrary, the record suggests counsel was acting diligently and responsibly by objectively evaluating the evidence and competently advising Fuller. Upon considering Fullers concerns, the trial court reasonably found them insufficient to warrant the appointment of new counsel. (See People v. Hart, supra, 20 Cal.4th at p. 604; People v. Smith (1993) 6 Cal.4th 684, 696.) Nothing more was required and there is no basis for concluding that the trial court failed to conduct an adequate Marsden inquiry. (People v. Silva (2001) 25 Cal.4th 345, 367; People v. Hart, supra, 20 Cal.4th at p. 604; People v. Williamson (1985) 172 Cal.App.3d 737, 745.) "To the extent there was a credibility question between defendant and counsel at the hearing, the court was `entitled to accept counsels explanation. [Citation.]" (People v. Smith, supra, 6 Cal.4th at p. 696.) In any event, "`the way in which one relates with his attorney [] does not sufficiently establish incompetence. [Citation.]" (People v. Hart, supra, at p. 604; People v. Williamson, supra, at pp. 745-746.) That an attorneys candid assessment of the strength of the Peoples case is not what the defendant hoped does not establish either inadequate representation or an irreconcilable conflict. (Cf. In re Alvernaz (1992) 2 Cal.4th 924, 933 [defendant can be expected to rely upon counsels independent evaluation of the charges, law, evidence, and risks and probable outcome of the trial].) An attorney cannot be expected to manufacture a winning defense where one does not exist. Disagreement with counsel over reasonable tactical choices does not show either incompetence or an irreconcilable conflict. (People v. Hart, supra, at p. 604; People v. Memro (1995) 11 Cal.4th 786, 858; People v. Williamson, supra, at p. 745.)
5. The evidence was sufficient to support the conviction.
Fuller states, in conclusory fashion, that the evidence was insufficient to support the verdict. He requests that this court "independently weigh the evidence and see that the circumstances of a third party causing the injuries was credible."
Fuller fundamentally misperceives the role of this court in addressing a sufficiency of the evidence claim. When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he test of whether evidence is sufficient to support a conviction is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 667.) "We draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) It is not the function of an appellate court to reweigh the evidence on appeal. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ochoa, supra, at p. 1206; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) "`"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 504.)
There was ample evidence to support the jurys verdict in the instant case, and Fuller offers no meaningful argument to the contrary. Tiasha told Wilson, Deputy Duron, and Detective Wedel that Fuller had beaten her. Tiashas statements to Wilson were made immediately after Fullers attack, when Tiasha was panicked, bleeding, and screaming for assistance; her statements to Deputy Duron were made shortly thereafter. Tiashas injuries were consistent with her account of the attack and included fractures around her eye and nose. Among other things, Deputy Durons observation of blood and the disarray at Tiashas apartment corroborated her story. The evidence was more than sufficient.
6. Fuller has failed to establish ineffective assistance of counsel.
In his petition for a writ of habeas corpus, Fuller urges that his trial counsel was ineffective in a variety of respects.
"A meritorious claim of constitutionally ineffective assistance must establish both: `(1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails . . . ." (People v. Holt, supra, 15 Cal.4th at p. 703; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211; In re Scott (2003) 29 Cal.4th 783, 811.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin, supra, 18 Cal.4th at p. 333.)
"`"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Where counsels strategic reasons for challenged decisions do not appear in the record, we will not find ineffective assistance unless there could be no conceivable reason for counsels acts or omissions. (Ibid.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Carter, supra, 30 Cal.4th at p. 1211.) "Were it otherwise, appellate courts would be required to engage in the `"perilous process" of second-guessing counsels trial strategy." (People v. Frye (1998) 18 Cal.4th 894, 979.)
a. Failure to object to admission of evidence regarding prior instances of domestic violence.
Fuller complains that his attorney was ineffective for failing to seek exclusion of the prior instances of domestic violence on grounds the evidence was unduly prejudicial under Evidence Code section 352. As we have already discussed in section 1 of the Discussion, ante, the evidence regarding Fullers prior acts of domestic violence against Tiasha was properly admitted pursuant to Evidence Code section 1109. Defense counsel could reasonably have concluded that an objection to the evidence would have been unsuccessful. Defense counsel "is not required to make futile motions or to indulge in idle acts to appear competent." (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.) Had defense counsel moved to exclude the evidence as Fuller suggests, it is entirely likely the trial court would have denied the motion. Therefore Fuller has not established that a determination more favorable to him would have resulted even if counsel had objected.
b. Failure to object to portions of the prosecutors closing argument.
Fuller also argues that trial counsel was ineffective for failing to object to portions of the prosecutors closing argument. As we have discussed in section 2 of the Discussion, ante, the challenged portions of the prosecutors argument were either nonobjectionable or harmless. Therefore, Fuller has failed to establish either that counsels failure to object fell below an objective standard of reasonableness, or that a determination more favorable to him would have resulted had the challenged portions of the argument been omitted. (People v. Carter, supra, 30 Cal.4th at p. 1211.)
c. Failure to procure Yolanda Manus presence at trial.
Fuller complains that defense counsel failed to locate and present defense witnesses. The only witness specifically referenced by Fuller is Yolanda Manu, the woman who purportedly injured the victim.
To the extent Fuller intends to challenge trial counsels failure to present witnesses in addition to Manu, his petition fails to explain who the purported witnesses were or what favorable evidence they possessed. Fuller also fails to provide any specific facts, as opposed to mere conclusory allegations, showing that his counsel actually failed to investigate and attempt to procure the testimony of favorable witnesses. Under these circumstances, Fuller has failed to state sufficient grounds for relief. His contention, "`lacking as it is in specificity, virtually defies review. [Citation.]" (People v. Box (2000) 23 Cal.4th 1153, 1190, fn. 8.)
The record reflects, however, that trial counsel made reasonable efforts to procure Manu as a witness at trial. At defense counsels request, the trial court ordered Manu to appear in court on Tuesday, September 5, 2006, during trial. Manu failed to appear. Defense counsel explained that he had telephoned Manu but she had hung up on him. At Fullers request, the court issued an arrest warrant for Manu. Defense counsel left messages on Manus phone, to no avail. The prosecutors investigating officer went to Manus residence at the courts request, to attempt to procure Manus attendance at trial. Manus mother — who was aware her daughter had been ordered to be in court — informed the investigator that Manu was not present. The trial court found the defense acted diligently in attempting to locate Manu and secure her presence in court, and declared her an unavailable witness. Defense counsel subsequently introduced a report written by a defense investigator memorializing an interview in which Manu stated she had fought with Tiasha. Thus, defense counsel diligently sought Manus presence at trial and managed to get the crucial points of her testimony before the jury via the written report. Fuller fails to acknowledge these facts or explain how counsels performance was nonetheless deficient. The record does not suggest either that counsels performance was unreasonable or that Fuller suffered any harm as a result of the written report, rather than Manus live testimony, being admitted into evidence. Fuller therefore fails to establish either prong of his ineffective assistance claim.
d. Failure to move for bifurcation of priors.
The information alleged Fuller had suffered a conviction for making a criminal threat (§ 422) in case no. NA058145, a serious or violent felony (§§ 667, subds. (a), (b)-(i), 1170.12, subd. (a)-(d)). It further alleged Fuller had served four prior prison terms within the meaning of section 667.5, subdivision (b), in case Nos. NA058145, NA043673, and NA053798. During trial defense counsel expressly confirmed that "theres not going to be any bifurcation of any of the special allegations." Accordingly, without objection the People presented documentary evidence and testimony showing that Fuller had been convicted in case No. NA053798 of assault with a deadly weapon (§ 245, subd. (a)(1)) and sexual battery (§ 243.4); in case No. NA043673, of infliction of corporal injury on a spouse (§ 273.5, subd. (a)); and in case No. NA058145, of making a criminal threat (§ 422). Fuller now complains that defense counsel provided ineffective assistance by failing to move to bifurcate.
Fuller has failed to establish that counsel lacked a tactical basis for the failure to move to bifurcate, that he was asked for an explanation and failed to provide one, or that there could be no tactical reason for his actions. (See People v. Carter, supra, 30 Cal.4th at p. 1211.) Even assuming trial counsels action fell below an objective standard, Fuller has failed to show prejudice. As discussed, at least a considerable portion of the information would have been before the jury in any event, to establish the prior incidents of domestic violence. Furthermore, the evidence of Fullers guilt was extremely strong. The People presented, among other things, the testimony of Wilson, an unbiased eyewitness who recounted how Tiasha — beaten, bleeding, and hysterical — had pounded on her door. Deputy Duron testified to Tiashas description, made shortly after the attack, of how Fuller had beaten and choked her. Tiashas documented injuries were consistent with her statements at the crime scene, before she had time to manufacture a story exculpating Fuller. Durons observation of blood and disarray in Tiashas apartment further corroborated her account. The only other explanation for her injuries, the purported fistfight with Manu, was not credible or consistent with the other evidence. At the crime scene, Tiasha did not indicate her injuries had been caused by a fight with Manu. The story that Manu and Tiasha fought was seriously undercut by the letter from Jackson, suggesting Fuller arranged for more than one woman to claim she had fought with Tiasha on Mothers Day 2006 in an effort to exculpate himself. There is no reasonable probability that, even if evidence related to the prior conviction allegations had been omitted, a determination more favorable to defendant would have resulted. (See ibid.)
e. Failure to make Romero motion.
Fuller next asserts that his counsel was ineffective for failing to make a Romero motion to strike prior conviction allegations in the interests of justice (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Counsel could reasonably have concluded such a motion would have been futile. Even assuming counsel erred by failing to so move, Fuller has failed to establish, or even address the likelihood, that a Romero motion had any chance of success. In the furtherance of justice, a trial court may strike a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, at p. 504.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) When considering whether to strike prior convictions, the relevant factors a court must consider are "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Fuller had a lengthy criminal history, starting with convictions for trespassing and petty theft when he was a minor. His adult history included convictions for assault, vandalism, assault with a deadly weapon, sexual battery, and making a criminal threat. In the current offense, he beat his childrens mother so badly that he broke bones in her face. According to his probation report, Fuller was on parole at the time of the instant offense and was a registered sex offender. Given his criminal history, the violent nature of the charged crime and his history of abuse of the victim, there is little chance the trial court would have granted a Romero motion. Therefore Fuller has failed to establish the second prong of his ineffective assistance claim, i.e., a reasonable probability of a more favorable result in the absence of counsels purported failings.
f. Miscellaneous contentions.
Fullers writ petition and declaration set forth a variety of additional vague and conclusory claims, including that counsel failed to provide him with reports, documents, and other material; failed to prepare Tiasha for trial; failed to object to the Peoples exhibits and witnesses; failed to prepare diligently for trial; failed to file any of the motions he requested; failed to file a motion for informal discovery; disclosed private and privileged communications; and failed to explain how his maximum sentence might be calculated. Fuller fails to support any of these claims with specific factual information beyond his bare averments. Fuller fails to aver facts sufficient to show either that counsels performance fell below an objectively reasonable standard, or that the purported errors undermine confidence in the outcome. Accordingly, Fuller has failed to establish ineffective assistance of counsel and has not established his claim for relief.
The record reflects that the People did, in fact, provide discovery to Fullers counsel.
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.