Opinion
A145821
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK RENEE GATES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083022A)
A jury convicted Frederick Gates of six felonies and a misdemeanor as a result of four different incidents of domestic violence against his girlfriend, L.S. Gates makes four assignments of error: (1) he was denied his right to a public trial when the courtroom was briefly closed to spectators during re-hearing on a motion in limine; (2) trial counsel's failures to object to certain testimony and to call three defense witnesses constituted ineffective assistance; (3) the court should have offered to instruct the jury on self-defense; and (4) the court failed properly to apply Penal Code section 654 in sentencing. We will affirm.
To preserve the privacy of a victim of crime, L.S. is referred to by her initials only. (Cal. Rules of Court, rule 8.90.)
All statutory references are to the Penal Code, except as otherwise indicated.
BACKGROUND
L.S. testified at trial that she began dating Gates in April 2013, and that three violent incidents occurred at her home later that year. In October 2013, the couple got into an argument about her looking at his cellphone. As Gates went to leave following the argument, he spat in her face and then ran. She chased him. He grabbed her, put his hands around her neck, and pushed her backwards against a bannister. She ended up with a deep scratch on her chest and marks on her neck. The police were not involved.
L.S. testified that in November 2013 the couple again argued about her looking at his cellphone. When L.S. inspected Gates's phone, she found women's names that upset her, and she needled him about it. As L.S. then went toward the front door to show Gates out, he took her to the floor and pushed, or smashed, the side of her head into the ground. She only broke free by pulling a picture frame off the shelf and hitting him with it, at which point he ran off. From this incident, L.S. suffered major swelling to the left side of her face, a cut lip, and a scratch beneath the nose. Again, no police were involved.
L.S. testified that in late December 2013, Gates accused her of infidelity and again went after her physically. First, he punched her in the stomach. She tripped running away, then went for a kitchen knife to defend herself. Gates told her she was "not going to cut" him, then punched her hard in the face before running away. L.S. suffered a black eye, bruising on the stomach, swelling to her face, and cuts to her head, neck, and arm. Police arrived and took pictures.
The fourth and final incident of violence giving rise to the charges in this case occurred in the early morning hours of January 3, 2015, when Gates and L.S. returned to her home after a jazz concert and late-night dinner with Gates's cousin and his wife. L.S. testified to the following: When Gates refused to lend L.S. his car keys, she told him to leave her home. Gates gathered up his things and put an empty Coach purse he had just given L.S. for Christmas over his arm to take it, too. L.S. attempted to grab her purse back and told her 17-year-old daughter Jae to call the police. Gates had picked up a metal bat that L.S. kept in her bedroom and thrust one end of it at L.S.'s mouth, cracking her teeth and causing her lip to bleed. Gates fled with the purse, and L.S. followed him into the street, trying to prevent him from closing his car door to drive away. Jae, who had been trying to help L.S. get her purse back, went after Gates, who then bit Jae in the back. L.S. ended up on the ground, and not long thereafter blacked out. She next remembers pain in her legs, an inability to stand unassisted, talking to the police in her home, and going to the hospital. Her head hurt for a week, and an orthopedic specialist treated her ankle for four months.
Jae testified in a manner that complemented her mother's testimony. She testified to L.S. yelling at Gates to get out of her house and struggling with Gates over the purse. Jae testified that when Gates was trying to drive away, Jae climbed into the back seat of his car, put him in a choke hold to try and restrain him, and subsequently managed to grab the bat out of the front seat. Gates bit her in the back. When Jae heard Gates say he was going to run over her mother, she hit him twice in the head with the bat. Then she got out of the car and saw that her mother's legs were pinned under the car. She yelled at Gates that he was on L.S.'s leg and needed to move forward. Eventually, Gates drove off. Jae was left with bite marks on her back and bruises on her leg and her back.
Gates testified to a different version of events. He categorically denied all the violence alleged in 2013, remembering no confrontation in October and denying any use of force against L.S. in the November or December 2013 incidents. As to the events of January 2015, Gates confirmed that L.S. told him to leave her home, but testified that L.S. and her daughter were the only ones to use violence that night. As he started to leave, L.S. pushed him into a closet door and then attacked him from behind with her metal bat as he went down the stairs. Gates showed photographs of lumps on his head, two he said caused by L.S. hitting him with the bat, and one caused by Jae also wielding the bat. Gates testified that after he got into the driver's seat of his car, L.S. started the engine and the car rolled without him touching the accelerator or the brake. When he saw that L.S. had slipped to the ground near the car, he told Jae to help her, turned the car off, and remained nearby until Jae had gotten her mother to safety. Asked whether at any time during these events he had hit L.S., Gates responded, "I never had the bat at all." To a follow-up question whether he put hands on her, Gates testified: "No. I never physically touched her at all."
At trial, Gates faced four criminal charges for the events of January 3, 2015, followed by three for the three incidents in 2013. Count 1 alleged first degree robbery, with enhancements for use of two deadly weapons (a bat and a vehicle) and for inflicting great bodily injury in an act of domestic violence. (§§ 212.5, subd. (a); 12022, subd. (b)(1); 12022.7, subd. (e).) Count 2 alleged felony domestic violence, with enhancements for use of a deadly weapon (a bat) and for inflicting great bodily injury in an act of domestic violence. (§§ 273.5, subd. (a), 12022, subd. (b)(1); 12022.7, subd. (e).) Count 3 was identical to count 2 except that the alleged deadly weapon was a vehicle, rather than a bat. Count 4 alleged misdemeanor cruelty to a child, specifically Jae. (§ 273A, subd. (b).) And counts 5 through 7 each alleged felony domestic violence without enhancements, for the events of December, November, and October 2013, respectively. (§ 273.5, subd. (a).) On June 4, 2015, the jury convicted Gates on all counts and found all enhancements to be true.
On July 24, 2015, Gates was sentenced to 13 years in prison. The trial court selected as the principle term count 3, with its enhancement for using his car as a deadly weapon. Gates received nine years on this count, including enhancements. For counts 2, 5, 6, and 7, the court imposed one year consecutive per count, bringing the total to 13 years. For the misdemeanor, Gates was sentenced to time already served, and for the robbery in count 1 the court imposed but stayed, pursuant to section 654, an eight-year sentence.
The same day he was sentenced, Gates filed his notice of appeal.
DISCUSSION
I. Public Trial Right
"Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times." (People v. Woodward (1992) 4 Cal.4th 376, 382.) This is a fundamental constitutional right, but "not every closure of a trial . . . rises to the level of a constitutional violation." (People v. Bui (2010) 183 Cal.App.4th 675, 682.) Some closures "are so 'de minimis' that they do not violate a defendant's constitutional public trial rights." (Ibid.) Also, a criminal defendant can waive his right to a public trial, or his attorney may do so on his behalf. (People v. Lang (1989) 49 Cal.3d 991, 1028, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) "[W]aiver may be implied from failure to object." (Ibid.) In this case, any objection Gates may have to the closing of the courtroom during his trial was waived, as neither he nor his attorney objected when spectators were asked to leave.
During Gates's trial, the court excluded the public from a few minutes of argument on a motion. As court recessed for lunch on June 1, 2015, the judge instructed the jury to return at 1:30 p.m. and counsel to come 15 minutes earlier to address motions. After lunch and half-way through the argument on these motions, several members of the public (including appellate counsel) attempted to enter the courtroom. Seeing them, the judge briefly interrupted her colloquy with counsel to direct these words to the spectators: "[A]ctually, we can't have—we're doing motions. So no audience members right now. Let us finish the motions and then we'll let you in." Five pages of transcript later, the court had finished with motions. The court and counsel briefly discussed a scheduling issue, a child witness was brought in and sworn, and then the jury returned to the courtroom. At no time did Gates or his lawyer indicate any objection to the spectators having been asked to remain outside until the motions were finished. Having failed to object when the court first directed these members of the public to remain outside the courtroom, Gates has waived his claim that this brief exclusion violated his constitutional right to a public trial. (See Lang, supra, 49 Cal.3d at p. 1028.)
Gates acknowledges that waiver can be implied from a failure to object, but argues that courts must indulge every reasonable presumption against waiver of a fundamental constitutional right, and that no waiver occurred here. Gates relies on the general principle that " '[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege' " (People v. Peterson (1965) 233 Cal.App.2d 481, 493-494), and argues that the relinquishment here was unintentional because trial counsel was unaware the public was being excluded. Gates submitted, in support of this argument when he first made it in a new trial motion, a declaration of appellate counsel stating that in a brief discussion on June 25, 2015, trial counsel had "expressed that he was unaware that the public had been excluded from any parts of the trial." The problem with Gates's argument is that this snippet of ambiguous hearsay does not detract from the unambiguous evidence provided by the transcript of the trial proceedings. The transcript establishes that Gates's trial attorney was present and participating during the early afternoon arguments on June 1, 2015, and so would have heard the judge speaking from the bench to spectators who had come into the courtroom. In the absence of a declaration from trial counsel specifically denying that he heard the judge addressing the spectators in open court on June 1, we do not consider it a "reasonable presumption" from the second-hand report of a comment made several weeks later that Gates's trial counsel was oblivious to the court's on-the-record statement directing spectators to leave the courtroom for a few minutes.
Because we find Gates waived his right to object to the temporary closing of the courtroom, we have no occasion to consider whether this closure violated Gates's constitutional right to a public trial.
II. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the effective assistance of counsel during criminal proceedings. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant has been denied such assistance, requiring that his conviction be reversed if: (1) " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms,' " and (2) prejudice ensued, meaning "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at pp. 216-218.) In examining counsel's performance, a reviewing court should "exercise deferential scrutiny." (Id. at p. 216.) The defendant bears the burden of proving by a preponderance of the evidence an ineffectiveness claim. (Id. at p. 218.)
Gates argues that his trial counsel was constitutionally defective because he failed to object to irrelevant and prejudicial testimony and failed to call three defense witnesses. Gates offers no declaration from trial counsel explaining why he acted as he did, and no evidence addressing professional norms, and his argument comes up short for reasons specific to the claims of ineffectiveness that he makes.
First, Gates objects that he should not have been cross-examined about his relationships with other women because these are irrelevant, so that when his testimony on this subject was impeached, it was on a collateral matter. But suspicions of infidelity, his and hers, were central to the arguments between Gates and L.S. that immediately preceded the 2013 incidents of violence. It was perfectly reasonable for the prosecutor to ask Gates whether he had told L.S. that he considered their relationship exclusive and, when Gates answered in the affirmative, to ask about his relationships with certain other women. This case is not like Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1034-1035, a products liability case against a tire manufacturer in which plaintiff driver was questioned about multiple sexual partners although those relationships had no relevance to the accident or any other issue in the case.
Gates fails to persuade with his argument that defense counsel should have objected to other evidence, too. He points to questions about Christmas gifts and Christmas greetings that he and L.S. exchanged. Since their January 2015 fight began over Gates walking out with the purse that he had given her for Christmas, even as she told him to leave behind the Christmas gifts she gave him, these questions seem unobjectionable. Gates also points to defense counsel's willingness to stipulate that on a phone call from jail in February 2015 Gates told a friend she should "hide the bag" because authorities had searched another house. Gates may be right that Deputy Acosta could not have testified over a proper objection that he heard this statement on the tape (see Evid. Code, § 1523), but Gates ignores that if such an objection had been sustained, the prosecutor could have introduced the audiotape of Gates making this statement so that the jury heard it for themselves. We fail to see how the admission of Acosta's testimony or of any of the other testimony to which Gates points (including that Gates lied about his name when he first introduced himself to L.S., and that L.S. told a treating physician she had been assaulted and run over by a car), proves counsel was ineffective, even if the specific testimony in question could have been limited or excluded.
We are also unpersuaded that defense counsel's decision not to call three witnesses rendered his assistance ineffective. Gates faults counsel for not calling Gates's current girlfriend to testify that L.S. had once punched her in the abdomen and brandished a knife in an apparent show of jealousy. But the trial court was inclined not to allow this witness to testify because she disobeyed the court's order excluding witnesses and sat in the courtroom during a portion of L.S.'s testimony. And if the witness had testified, she would have been subject to impeachment with jailhouse phone calls in which Gates is heard urging her to call his lawyer and tell this story, to which the witness responds, "No one ever brandished a knife at me." Finally, because this girlfriend was not an eyewitness to any of the events at issue in the trial, her impeachable (or excludable) testimony was of only limited probative value.
The second and third witnesses whom Gates faults his lawyer for not calling are Gates's cousin and the cousin's wife—the couple who joined Gates and L.S. at the jazz concert and for dinner in January 2015. Gates wanted these witnesses called to testify that during the evening L.S. voiced suspicions about Gates being unfaithful, consumed considerable quantities of alcohol, and seemed to have an "attitude." But this evidence would have been of limited value, since the jury heard other evidence that L.S. suspected Gates of infidelity, and L.S. herself testified that she had been drinking on the evening of January 2, 2015. Also, the witnesses posed significant risk to the defense, especially because Gates had given his cousin an account of what happened at L.S.'s home in the early hours of January 3, 2015 that differed in important ways from the version Gates later gave at trial.
Gates fails to establish that a competent defense counsel necessarily would have called any of these three witnesses, or would have objected to any of the testimony about which Gates now complains.
III. Instruction on Self-Defense
Under certain circumstances, a trial court has a sua sponte duty to instruct on a legal defense, even one on which the defendant does not rely. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The duty to instruct arises where substantial evidence supports a defense, and the defense is not inconsistent with the defendant's theory of the case. (Ibid.) The California Supreme Court has even instructed (in dictum) that if " 'there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.' " (Ibid., italics omitted.) But in the same opinion the Supreme Court warns, " ' " '[a]ppellate insistence upon sua sponte instructions [concerning defenses] which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.' " ' " (Id. at p. 158.)
Gates did not request instructions on self-defense, and he did not rely on a self-defense theory. He flatly denied that he had committed any of the acts of violence of which he stood accused. That does not preclude a duty to instruct on self-defense (see People v. Elize (1999) 71 Cal.App.4th 605, 610-615), but no such duty arose in this case because there was no substantial evidence to support self-defense instructions. In particular, no reasonable jury hearing the evidence at trial could have concluded that Gates reasonably believed an immediate use of force was necessary to defend against an imminent danger posed by L.S. or Jae, and that Gates used no more force than reasonably necessary to defend against such danger. (See CALCRIM No. 3470 (Right to Self-Defense or Defense of Another (Non-Homicide)).) This is especially true since self-defense is not available to one who starts a fight or engages in mutual combat unless he or she has "indicated, by word or by conduct, to (his/her) opponent" an intent to stop fighting. (CALCRIM No. 3471.)
Applying these principles to the facts of Gates's case, there is no substantial evidence of self-defense for any of these crimes. In October 2013, Gates started the fight by spitting on L.S. and never tried to stop it. He also put his hands around her throat and leaned her over the banister in a manner not necessary to defend against any danger. In November 2013, Gates attacked L.S. by smashing her head into the ground before she reached for a picture frame or otherwise acted in a threatening manner. In December 2013, Gates started the fight by punching L.S. in the stomach and never indicated an intent to stop the fight. Instead, he was chasing after her when she went for a knife to defend herself. As for the January 2015 incident, the jury had to choose between two starkly different versions of events: either L.S. and Jae attacked Gates and he tried to get away while they got hurt through no fault of his (Gates's version), or Gates attacked L.S. with a bat in the house and with the car in the street, where he and Jae also went after each other in the struggle (L.S. and Jae's version). Gates's physical struggle with Jae does not support a self-defense instruction because either Gates initiated the fight and never tried to stop it (L.S. and Jae's version), or he never bit her or otherwise attacked her (Gates's version), and neither of these versions amounts to self-defense.
Because no substantial evidence supports self-defense in this case, the trial court had no obligation to ask whether Gates wanted the jury given self-defense instructions.
IV. Sentencing Error
Under section 654, subdivision (a), "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but" not "punished under more than one provision." By judicial gloss, the single punishment rule applies, not just for a single act, but for a single course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.)
Relying on these principles, Gates argues that the trial court imposed an impermissible sentence in adding one year of consecutive time for count 2, instead of staying the sentence for count 2 in light of the nine-year sentence on count 3. Count 2 was felony violation of section 273.5, with enhancements for using a bat and causing great bodily injury (to L.S.'s face). Count 3 was also felony violation of section 273.5, but with enhancements for using a vehicle and causing great bodily injury (to L.S.'s ankle).
Because these are both violations of the same statute, section 654 does not apply. (People v. Correa (2012) 54 Cal.4th 331 (Correa).) Gates complains, as did the defendant in Correa, of "multiple violations of the same statute, while the express language of section 654 applies to an act that is punishable in different ways by different provisions of law." (Id. at p. 337.) Based in part on this statutory language, our Supreme Court has expressly held "that section 654 does not bar multiple punishment for violations of the same provision of law," notwithstanding contrary dictum in a footnote in Neal. (Id. at p. 344.)
Applying Correa to this case, Gates's challenge to his sentence fails because counts 2 and 3 are both violations of section 273.5. (See Correa, supra, 54 Cal.4th at p. 344.) Section 654 simply does not apply, so we need not engage in the analysis of defendant's intent and objective that would otherwise be required by Neal. (See Neal, supra, 55 Cal.2d at p. 19.)
DISPOSITION
In a separate order issued with this opinion, we deny Gates's petition for habeas corpus. (In re Gates (No. A148500).)
/s/_________
Tucher, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------