Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF212878. Darryl B. Ferguson, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
In December 2008, an information was filed charging appellant Brandon Dean Hammers with three felonies: assault with a semiautomatic firearm (count 1), possession of a firearm by a felon (count 2) and attempted unlawful driving or taking of a vehicle (count 3). (Pen. Code, §§ 245, subd. (b), 12021, subd. (a)(1); 664; Veh. Code, § 10851.) The information also charged appellant with two misdemeanors: resisting arrest and giving false information to a peace officer (counts 4 & 5). (Pen. Code, §§ 148, subd. (a)(1), 148.9, subd. (a).) It was specially alleged that appellant personally used a firearm during the commission of count 1 and that he served a prior prison term. (Pen. Code, §§ 12022.5, subd. (a), 667.5)
Appellant pled no contest to counts 4 and 5 and admitted a 2007 felony auto theft conviction for purposes of count 2. Jury trial was held on the felony charges and the firearm allegation. Appellant was found guilty of misdemeanor simple assault as a lesser included offense of the crime charged in count 1; the firearm use allegation attached to count 1 was found not true. (Pen. Code § 240.) Appellant was found not guilty on counts 2 and 3. The court found the prison prior true. Appellant was sentenced to an aggregate term of two years imprisonment.
Appellant argues the court improperly admitted evidence of two prior auto thefts and allowed references to a booking photograph. He also argues defense counsel was ineffective because he did not object to admission of this evidence. Finally, he contends that he suffered cumulative prejudice in violation of his federal constitutional due process right. We are not persuaded and will affirm the judgment.
Appellant did not call any defense witnesses.
I Events on November 7, 2008
At approximately 7:00 a.m. on November 7, 2008, Edgar Haras-Lopez (Haras) saw appellant partially inside a parked car belonging to Heriberto Escobar. Appellant was holding a screwdriver. Haras asked appellant what he was doing. Appellant was wearing a sweatshirt; he put his hands inside of the sweatshirt’s front pocket and pulled out a dark-colored semiautomatic pistol. Appellant pulled back the gun’s slide and aimed it at Haras. Haras said in Spanish, “Take the car. I don’t care.” Appellant fled on foot.
Haras woke up Escobar and told him someone was trying to steal his car. Escobar called the police. Haras and Escobar got into Escobar’s car and followed appellant. They lost sight of appellant when he moved behind some trees.
Police officer Cory Sumpter was in a marked patrol car responding to a call about an attempted car theft when he saw a person matching the suspect’s description. Sumpter identified appellant in court as this person. When appellant saw the patrol vehicle, he ducked behind a fence and then jumped over it into a back yard. Sumpter yelled at appellant to stop but he did not comply. Sumpter did not see a gun in appellant’s possession. Sumpter radioed for backup and a perimeter was created.
About 20 to 30 minutes later, police officer Shane Logan saw appellant in the area and took him into custody. Appellant falsely identified himself to Logan as Skyler Hammers, who is appellant’s brother. Logan obtained a photograph of Skyler Hammers and showed it to appellant. Appellant identified himself truthfully. Appellant was not wearing a sweatshirt when he was arrested and was not armed. The perimeter area was searched. Neither a sweatshirt nor a gun was found.
Haras and Escobar were taken separately to an infield showup. They both identified appellant.
II Appellant’s 2007 auto theft conviction
Outside the presence of the jury, appellant admitted that he was convicted of auto theft in January 2007. The jury was told counsel had stipulated appellant is a convicted felon, and this information applies to count 2.
III Evidence pertaining to appellant’s theft of a Dodge Durango
Jeremy Kiesz testified that his Dodge Durango was stolen on the day after Thanksgiving, two or three years ago. He reported the theft to the police.
On November 24, 2006, police officer Chris Diebolt received a bulletin to be on the lookout for the Durango. He saw the vehicle and a chase ensued. Diebolt saw the driver, who eluded capture. Diebolt identified appellant in court as the driver.
Diebolt was in the area when Roy Fessler approached him. Fessler was one of appellant’s neighbors and he had seen the driver of the Durango. Fessler asked Diebolt, “Did you catch him?” Diebolt replied, “No. He got away.” Fessler said, “I know who that is. It’s Brandon.” Fessler said he had seen appellant driving around in the Durango. Fessler gave appellant’s full name and address to Diebolt.
Diebolt obtained a booking photograph of appellant. It matched the person Diebolt saw driving the Durango. He wrote a report requesting appellant’s arrest.
IV Evidence pertaining to appellant’s theft of a Cadillac
Jim Garrett testified that he owned a Cadillac SLS that was stolen two years ago. He reported the theft to the police.
When police officer Adam Collins was on patrol on December 5, 2006, he observed a suspect looking inside a white Cadillac. As he approached, the person jumped into the Cadillac and sped away. A chase ensued. Collins ran the vehicle’s license plate number through dispatch and it came back as a stolen vehicle. Eventually, the driver of the Cadillac stopped in an alleyway, exited the car and fled on foot. Police set up a perimeter and apprehended the suspect, who identified himself as Skyler Hammers. During the booking process, the suspect was determined to be appellant. Collins identified appellant in court as the suspect. A flat-blade screwdriver and keys that had been filed down or “shaved” were found in the Cadillac. These items can be used to steal a vehicle.
DISCUSSION
I All of appellant’s evidentiary challenges were forfeited by the absence of contemporaneous objection.
The rule requiring contemporaneous objection to admission or exclusion of evidence is well established. “A judgment will not be reversed on grounds that evidence has been erroneously admitted unless ‘there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion....’ (Evid. Code, § 353, subd. (a). Italics added.) Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 853-854.) “An appellate contention that the erroneous admission or exclusion of evidence violated a constitutional right is not preserved in the absence of an objection on that ground below. [Citations.]” (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.)
Unless otherwise specified all statutory references are to the Evidence Code.
Appellant contends Fessler’s statements to Diebolt should have been excluded as hearsay and further argues that admission of this testimony violated his Sixth Amendment confrontation right, as defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). It is undisputed that defense counsel did not object to admission of this testimony on any ground. As a result, these points were not preserved for direct appellate review. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [confrontation clause claim forfeited due to absence of trial objection on this ground].)
Appellant also argues that the prior crimes evidence was not admissible pursuant to section 1101 and admission of this evidence violated his federal constitutional due process right. The record affirmatively shows that defense counsel did not object to admission of this evidence on any ground. Therefore, appellant did not preserve these points for direct appellate review. (People v. Thornton (2007) 41 Cal.4th 391, 430, fn. 6 [failure to object to admission of character evidence forfeited point on appeal]; People v. Daniels, supra, 176 Cal.App.4th at p. 320, fn. 10 [constitutional claim forfeited due to absence of objection on this specific ground below].)
Finally, appellant argues the court should have excluded references to appellant’s booking photograph during Diebolt’s testimony or, at a minimum, prohibited use of the word “booking” because it was excessively prejudicial. Defense counsel did not object to admission of this testimony or use of the word “booking.” Therefore, these claims were forfeited. (People v. Wilson (2008) 44 Cal.4th 758, 790, fn. 6 [§ 352 & constitutional claims forfeited by absence of objection].) Appellant did not directly argue the prosecutor committed misconduct by eliciting this testimony from Diebolt and using the word “booking” but, in an abundance of caution, we explicitly find such a contention was forfeited by absence of timely objection and request for admonition. (People v. Dykes (2009) 46 Cal.4th 731, 757 [absence of objection to claimed prosecutorial misconduct forfeited claim on appeal and, even if it is assumed there is merit to claim, timely objection and request for admonition would not have been futile.].)
II Neither ineffective assistance nor cumulative prejudice has been shown.
Appellant argues that if we conclude these issues were not preserved for direct appellate review, then we should find defense counsel ineffective for failing to object on these grounds at trial. Appellant also asserts the cumulative effect of these alleged evidentiary errors caused such prejudice that his federal constitutional due process right was infringed. We disagree. Whether the alleged evidentiary errors are considered individually or cumulatively, appellant was not prejudiced. Therefore, both claims fail.
The standard for assessing ineffective assistance claims is established:
People v. Gurule“Of course ‘“[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel” [Citation].’ [Citation.]” (People v. Gurule, supra, 28 Cal.4th at pp. 609-610.) Counsel does not have a duty to make futile or frivolous objections. (People v. Memro (1995) 11 Cal.4th 786, 834.)
There is no need to determine whether counsel’s alleged failings constituted deficient performance when the claim can be resolved solely on the absence of prejudice. (In re Jackson (1992) 3 Cal.4th 578, 604; Strickland v. Washington (1984) 466 U.S. 668, 697.) This is such a case. The evidence challenged on appeal all pertained to count 3, the attempted auto theft. Appellant was acquitted of this charge. He was also acquitted of count 2 (firearm possession by a felon) and only convicted of misdemeanor simple assault as a lesser included offense to count 1; the jury found the firearm use allegation attached to count 1 not true. There was no evidence showing that appellant possessed a weapon during the prior auto thefts or that he assaulted anyone. It is clear from the jury’s favorable verdicts that it was not prejudiced against appellant and did not harbor a lasting personal antipathy against him due to the contested evidence. He was only convicted of misdemeanor simple assault, and this conviction is supported by substantial evidence. It is not reasonably probable that the jury would have acquitted appellant of this crime if the contested evidence had been excluded in whole or in part. Therefore, the ineffective assistance and cumulative prejudice claims fail.
In any event, appellant also failed to establish deficient performance. Admission of the contested evidence was neither legally erroneous nor an abuse of discretion. Counsel does not have a duty to make futile or frivolous objections. (People v. Memro, supra, 11 Cal.4th at p. 834.) A confrontation clause objection would have been overruled because Fessler’s remarks to Diebolt were volunteered and relevant for a nonhearsay purpose. (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6; Crawford, supra, 541 U.S. at p. 68.)
Proof of the prior car thefts was properly admitted under section 1101, subdivision (b), to prove identity and common plan. The prior thefts had sufficient factual similarity to the charged attempted auto theft to support an inference that the same person committed both acts following a similar general plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) The evidence’s probative value was not substantially outweighed by the risk of unfair prejudice. The unfair prejudice referred to by section 352 produces a personal antipathy or lingering bias against the defendant. (People v. Karis (1988) 46 Cal.3d 612, 638.) The prior auto thefts were not more inflammatory than the charged crimes and would not have created a lingering personal bias against appellant. The jury was given a limiting instruction (CALCRIM No. 375). Jurors are presumed to understand and follow their instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.) There is no support in the record for a claim that the jurors used the prior crimes evidence for any improper purpose, particularly since they acquitted appellant of attempted car theft.
Finally, Diebolt’s testimony that he examined a “booking photo” to determine if appellant was the person he saw driving the Durango was relevant to prove identity. Use of the term “booking photo” was not prejudicial in light of the stipulation that appellant was a convicted felon. Defense counsel’s failure to object to use of this term could have been a reasonable tactical decision. (People v. Gurule, supra, 28 Cal.4th at p. 610.)
III. The recent amendments to section 4019 do not affect appellant because they apply prospectively only.
Pursuant to a standing order of this court issued on February 11, 2010, the issue of the applicability of the January 25, 2010, amendments to section 4019 (Stats. 2009-2010, 3d Ex. Sess, ch. 28, § 50) is deemed raised without further briefing by the parties. The amendments increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. In People v. Rodriguez (Mar. 1, 2010, F057533) ___ Cal.App.4th ___ [2010 WL 682459], we held the amendments to section 4019 applied prospectively only to those persons who had not been sentenced at the time the amendments went into effect. We also rejected the contention that prospective application of the amendments violated equal protection. Since appellant was sentenced prior to the effective date of the amendments, he is not entitled to any additional custody credits.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., Kane, J.