Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR027241. John W. DeGroot, Judge.
Sylvia Whatley Beckham, 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, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury found Carl Stacey Haar guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 infliction of corporal injury on a spouse (§ 273.5, subd. (a)(1)), two counts of stalking (§ 646.9, subd. (b)), two counts of misdemeanor violation of a court order (§ 166, subd. (a)(4)), and misdemeanor vandalism (§ 594, subd. (a)). In addition, an enhancement for being arrested for a felony while on bail also was found true (§ 12022.1, subd. (b)). Harr was sentenced to a prison term of nine years.
All further statutory references are to the Penal Code unless otherwise noted.
Harr argues the trial court erred in denying his motion for a new trial on the ground that he received ineffective assistance of counsel. His motion was based on the assertion that trial counsel was ineffective because he was diagnosed with Alzheimer’s disease shortly after the completion of the trial. We will reject his arguments because we find no evidence that counsel was ineffective. Harr’s actions leading to his conviction were testified to by numerous witnesses, leaving Harr with no viable defense. Nor is there any evidence in the record that a viable defense existed that was not pursued. Moreover, we reject Harr’s assertion that his stalking convictions were not supported by substantial evidence, a ground he argues proves trial counsel was ineffective.
We will reverse the section 12022.1 “on bail” enhancement because it was not supported by substantial evidence. As we shall explain, because the trial court precluded the People from presenting evidence on one of the elements of the enhancement, we will remand the matter for a new trial on the enhancement.
FACTUAL AND PROCEDURAL SUMMARY
Carolyn Harrand Harr were married in 1966 and have three children. They also owned a business, C and C Trucking. On August 25, 2006, Carolyn and Harr were driving in one of the company trucks when Harr stated he wanted a divorce. After a short discussion, Harr struck Carolyn in the face with his fist. Harr continued to strike at Carolyn while she attempted to fend off the blows and call for help on the citizens band radio and her cell phone. Harr then made a phone call and said to the recipient that Carolyn had hit her face on the dashboard and she was claiming that he (Harr) had hurt her. Carolyn did not exit the truck because she was afraid Harr would attempt to run over her with the vehicle. Harr eventually returned to their home and the police arrived. Harr informed the officers that Carolyn had attacked him. As a result of being hit in the face, Carolyn will need extensive dental work and may lose the sight in one eye.
We will refer to Carolyn Harr by her first name, not out of disrespect but to avoid any confusion to the reader.
Shortly after that incident, Carolyn instituted divorce proceedings and applied for a restraining order. Harr called Carolyn on several occasions after the restraining order was issued and served on him. On one occasion he told her she could run, but she could not hide. On another occasion Carolyn hung up the phone as soon as she recognized Harr’s voice. Harr immediately called again.
On October 28, 2006, Carolyn saw Harr as she was driving on Avenue 12. Harr drove by in the opposite direction. Carolyn’s brother, Lewis Blum, was with her and wanted to serve some papers on Harr. Carolyn turned around and located Harr stopped in a driveway. She parked in the street and Blum approached Harr. When Harr saw Blum, Harr picked up a rock and started chasing Blum. When Blum reentered Carolyn’s vehicle, Harr started hitting the vehicle with the rock. He then threw the rock at the passenger window of the car. Carolyn left the scene after the rock bounced off of the window. Later, Carolyn discovered Harr had damaged her car with the rock.
On February 5, 2007, the doorbell to Carolyn’s house was rung at approximately 2:00 a.m. Someone then began pounding on the kitchen window. Carolyn saw Harr at the window. He was yelling, “don’t you have something to say to me?” Harr again rang the doorbell and continued yelling. Carolyn called the police.
Carolyn’s house was broken into several times after the restraining order was issued. On one occasion, files related to Carolyn’s dogs were taken, which included pictures of the dogs. A while later Carolyn returned to the home to find some of the pictures left on the kitchen screen door. Also left on the screen door was a cartoon with a derogatory word written on it. Carolyn recognized Harr’s handwriting on the cartoon.
Someone turned on the water to the pond in the front yard of Carolyn’s house on one occasion. This caused the pump to run, increasing Carolyn’s electrical usage.
On one occasion Carolyn was arguing with Harr when she had to leave for work. When she returned home the next morning, there was a handgun on the kitchen counter. Harr stated, “this is how easy it is for me to get a gun. I can kill you any time I want to.” On another occasion Harr told Carolyn he had gone to Los Angeles and had hired someone to kill her. Harr stated that all he had to do was take the hired individual a picture of Carolyn to complete the transaction and he would do that if she did not “behave.”
Harr called Carolyn several times after the restraining order was in effect. These calls were terrifying to Carolyn. Over the years Harr had told Carolyn that he owned her and that he would never leave her alone.
Marilyn Harwell, Carolyn’s sister, received a call from Harr on August 27, 2006. Harr stated that Harwell needed to speak with Carolyn because Carolyn had “gone off of the deep end” and was going to hurt herself. On September 8, 2006, Harr again called Harwell and stated he was going to kill Carolyn and then hung up. Harr did not sound like he had been drinking.
On June 28, 2006, Harwell was visiting Carolyn at her house. Harr also was there and was angry. Harr wanted Carolyn to open the safe. She claimed she did not have the combination. Harr attempted to convince Carolyn to open the safe by breaking many items in the house.
Blum testified that he received a phone call from Harr at the end of October 2006. Harr stated his lawyer was trying to contact Carolyn. Harr also apologized for the things he had done. Finally, Harr stated that even though Carolyn was trying to put him in jail, he would get out some day. Blum understood the last comment to be a threat.
Blum also confirmed the incident described by Carolyn wherein Blum had attempted to serve a restraining order on Harr, and Harr responded by picking up a rock and chasing Blum. Blum confirmed that Harr hit Carolyn’s vehicle with the rock, and then threw the rock at the vehicle. Blum saw damage to the vehicle as a result of Harr’s actions. Blum also injured his leg trying to get away from Harr and was bothered by the leg at the time of trial.
M.H., Carolyn’s granddaughter, was included in the restraining order obtained by CarolyN.M.H. testified that on February 5, 2007, Harr parked his truck in front of Carolyn’s house. A woman was inside of the truck. Harr began yelling for Carolyn to come talk with him. The police were called. Harr left before the police arrived.
M.H. also was present a few nights before when Harr came to the door of Carolyn’s house at 2 in the morning and banged on the door and window trying to speak with Carolyn. The police were also called for that incident.
Finally, M.H. testified that on “a couple of times” after the restraining order was in effect, Harr would park his vehicle in front of the home where she was living and sit there.
Christina Otter met Harr in 2005 when her truck became stuck in the mud. Christina and her husband, Brian, became friends with Harr. Christina had met Carolyn only once or twice. Christina’s friendship with Harr changed one evening when Harr and his girlfriend Carrie visited with her. Carrie told Christina she had something she wanted Christina to hear. Harr asked Christina if she wanted to know what really occurred with Carolyn in Harr’s truck. Harr stated that Carolyn did not hit her head on the dashboard, but that he had hit the “bitch” in the mouth. Carrie played a phone message on her cell phone speaker for Christina to hear. It was a message left by Harr on Carrie’s phone. Harr was very calm. Christina could hear Carolyn screaming in the background and noises as if someone was being struck. Harr and Carrie both laughed at the message. They stated that they listened to the message frequently.
We will refer to Christina and Brian Otter by their first names, not out of disrespect but to avoid any confusion to the reader.
Christina reported the conversation to the police. Her statements were included in Carolyn’s application for a restraining order. The day Harr was served with the restraining order, Harr left a message on the Otters’ answering machine. A short while later Harr and Carrie drove by the Otters’ driveway and then parked on the road near the end of the Otters’ fence. About 15 minutes later, Harr drove up to the Otters’ house and got out of his vehicle. Brian called the police.
As a result of this incident, Christina and Brian acquired two more dogs, put a fence around their property, purchased a video surveillance system, and purchased a monitored home alarm. The Otters eventually obtained a restraining order against Harr. After Harr was served with the restraining order, Harr drove by the Otters’ house “constantly.” On one occasion Christina was outside when Harr stopped his truck in the roadway for approximately 20 seconds and starred at her. Christina also found broken vodka bottles in her driveway. Harr’s conduct made Christina feel that she could not leave her house.
Brian confirmed that while he and Christina were acquainted with Carolyn, they were primarily friends with Harr. Harr became upset when he found out Christina was going to testify on Carolyn’s behalf in the divorce proceedings. He began driving in front of the Otters’ home constantly. Another incident occurred when Brian was driving westbound and Harr pulled up beside him and made a rude gesture. Carrie also was in Harr’s vehicle. Harr then pulled into Brian’s lane in an unsafe manner, causing Brian to swerve to avoid Harr’s vehicle. Brian filed a police report regarding the incident and completed paperwork to obtain a restraining order against Harr. Brian then served Harr with the restraining order. After being served with the restraining order, Harr would drive by the Otters’ home two or three times a day. Harr also drove to Brian’s place of employment on November 29, 2006, which violated the restraining order.
On November 29, 2006, Brian was completing a service call when he observed Harr drive past his location. After completing the service, Brian pulled onto the road in the same direction Harr had been traveling. Brian observed Harr make a U-turn in front of him and drive towards him. Harr then swerved into the traffic lane in which Brian was driving. Brian slowed and swerved to avoid a head-on collision. Harr also swerved and struck the vehicle Brian was driving.
On December 9, 2006, Brian was driving westbound on Avenue 12 when he received a call from his dispatcher to pull over and wait for a Madera County Sheriff’s deputy to catch up with him and speak with him. The deputy sheriff informed Brian that Harr was following Brian on the roadway. Brian had seen a yellow vehicle, but did not realize it was Harr’s vehicle.
Romero Rodriguez, a correctional officer with Madera County, testified that Harr had been arrested for a felony and was released on bail on December 15, 2006.
Deputy Sheriff Jose Torres spoke with Harr about violating the restraining order because he had been within 500 yards of Brian’s place of employment on December 4, 2006. Harr stated he had a flat tire. Harr admitted there were other places he could have gone to have his tire fixed, but he chose the facility next to Brian’s place of employment. Torres also observed Harr following Brian’s work vehicle on December 9, 2006. Torres commenced a traffic stop on Harr’s vehicle and found Harr and Carrie in the vehicle. Harr stated he was not aware he was following Brian.
The consolidated information charged Harr as follows: count 1 -- assault with a deadly weapon (§ 245, subd. (a)(1)) as a result of the incident where Harr collided with Brian; count 2 -- infliction of corporal injury on a spouse (§ 273.5, subd. (a)) as a result of the incident where Harr struck Carolyn while the two drove in the company truck; count 3 -- felony stalking (§ 646.9, subd. (b)) of Carolyn culminating in the February 5, 2007, incident where Harr pounded on Carolyn’s door and window; count 4 -- felony stalking of Brian culminating in the December 9, 2006, incident where Harr was spotted by deputy sheriffs following Brian; count 5 -- misdemeanor violation of a court order (§ 166, subd. (a)(4)) as a result of the incident on February 5, 2007, involving Carolyn; count 6 -- misdemeanor violation of a court order (§ 166, subd. (a)(4)) as a result of the December 9, 2006, incident involving Brian; and count 7 -- misdemeanor vandalism (§ 594, subd. (a)) as a result of the October 28 incident where Harr chased Blum with a rock and then used the rock to damage Carolyn’s vehicle. Count 3 also alleged as an enhancement that Harr committed the offense while released from custody on bail, in violation of section 12022.1.
The jury deliberated for two hours before finding Harr guilty of each charged crime. With enhancements, Harr was sentenced to a total prison term of nine years.
DISCUSSION
Harr argues we should grant him a new trial because his counsel was ineffective. He claims that several counts were not supported by substantial evidence and that trial counsel should have argued such to the jury. First we will review the sufficiency of the evidence contentions and then turn to the claim of ineffective assistance of counsel.
I. Sufficiency of the Evidence
Standard of Review
To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict —i.e., evidence that is reasonable, credible, and of solid value—“‘“such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citation.]” (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Maury, at p. 403.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. (People v.Bolin (1998) 18 Cal.4th 297, 331.)
Count 3
Count 3 of the amended information charged Harr with stalking Carolyn in violation of section 646.9, subdivision (b). Section 646.9, subdivision (a) criminalizes the act of willfully, maliciously, and repeatedly following or harassing another person, in conjunction with making a credible threat with the intent of placing that person in reasonable fear for his or her safety. The term “harass” is defined as a “knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (Id., subd. (e).) A “course of conduct” is defined as “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” (Id., subd. (f).)
Subdivision (b) of section 646.9, the crime with which Harr was charged, provides increased penalties for a violation of subdivision (a) of section 646.9 while there is a temporary restraining order, injunction, or other court order in effect prohibiting such behavior against the victim.
The evidence presented at trial established that on September 8, 2006, a temporary restraining order was served on Harr protecting Carolyn and her family. In late October 2006 someone broke into Carolyn’s house and stole some papers. On October 28, a note was left on Carolyn’s door. The note was written on one of the papers stolen from Carolyn’s house a few days earlier. Carolyn testified that the note was written by Harr, based on her familiarity with his handwriting. The jury logically and reasonably could infer that Harr broke into Carolyn’s house and left the note on the 28th. The note referred to Carolyn in an offensive manner. Also on the 28th, Harr struck Carolyn’s car numerous times with a rock after chasing Blum with the rock. Also at the end of October, Harr called Blum and made comments Blum construed as a threat against Carolyn. On February 5, 2007, Harr approached Carolyn’s house in the very early morning hours and pounded on the front door and the nearby kitchen window screaming at Carolyn. Carolyn testified to numerous phone calls from Harr, numerous threats by Harr, numerous burglaries at her house, and numerous incidents of Harr driving past her house. This evidence was more than sufficient to establish that Harr harassed Carolyn within the meaning of section 646.9 after the temporary restraining was in effect.
Harr does not dispute this evidence, but instead bases his argument on a perceived defect in the information. Section 646.9 criminalizes a continuous course of conduct over a period of time. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) As Justice Mosk explained, “The actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury.” (People v. Jones (1990) 51 Cal.3d 294, 329 (dis. opn. of Mosk, J.) (Jones).) Harr argues, in essence, that because the information accused Harr of harassing Carolyn on February 5, we must ignore any event that did not occur on that date. “Therefore, for counts 3 and 4, the prosecutor bore the burden of proving … that … [Harr] made a credible threat or engaged in a pattern of conduct constituting the making of a credible threat on or about the date of the alleged offenses.” Since there was only one incident on February 5, Harr asserts he did not repeatedly follow or harass Carolyn on that date, nor did he threaten her on that date.
Harr has not cited any case that supports his argument. We have reviewed the cases he cited and none is relevant. The lack of authority for Harr’s position is understandable because the argument misperceives the role of the information in the prosecution and the prosecutor’s ability to amend the information to conform to proof.
Section 1009 allows an information to be amended by the district attorney “without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained” and authorizes a court to permit amendment of an information “for any defect or insufficiency, at any stage of the proceedings.” But the section prohibits the amendment of an information “to charge an offense not shown by the evidence taken at the preliminary examination.” (Ibid.)
“Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 640.) “Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information.” (People v. Jennings (1991) 53 Cal.3d 334, 358.) “[T]he information has a ‘limited role’ of informing defendant of the kinds and number of offenses, ‘the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript,’ which represents ‘the touchstone of due process notice to a defendant.’ [Citations.]” (Jones, supra, 51 Cal.3d at p. 312.)
If there was a defect in the information, Harr should have objected in the trial court where the prosecution could have amended the information to remedy the defect. The failure to raise such an objection has resulted in a forfeiture. (People v. French (2008) 43 Cal.4th 36, 46; People v. Burnett (1999) 71 Cal.App.4th 151, 178-179; People v. Newlun (1991) 227 Cal.App.3d 1592, 1604.) Moreover, as Jones makes clear, the details of the offenses, including the dates of the events leading to the charges, were left to the preliminary hearing. Because Harr does not contend that the evidence at the preliminary hearing was insufficient, his argument has no merit.
Count 4
Count 4 of the information charged Harr with stalking Brian, in violation of section 646.9, subdivision (b). The evidence at trial established that Harr was served with a temporary restraining order protecting Brian and his family on November 14, 2006. On November 29, Harr drove his vehicle in such a manner as to cause a collision with Brian’s vehicle. On December 4, Harr drove his vehicle to Brian’s workplace in violation of the restraining order. On December 9, Harr followed Brian while Brian was driving his work truck. Harr also drove by the Otters’ residence repeatedly after the restraining order was served on him. This evidence was more than sufficient to support the conviction. To the extent Harr relies on the same theory as discussed in the preceding section, the argument is rejected for the reasons stated.
Enhancement
The information alleged that at the time Harr stalked Carolyn as alleged in count 3, he was released from custody on bail within the meaning of section 12022.1. Section 12022.1, subdivision (b) provides that any person who is arrested for a felony offense (secondary offense) while that person is on bail for another felony offense (primary offense) shall be subject to a penalty enhancement of two years.
Harr was arrested on December 9, 2006, for a felony offense of assault with a deadly weapon (the primary offense). He was released on bail six days later. When the prosecutor began to ask the testifying officer when Harr was next arrested, the trial court sustained its own objection to the testimony determining it “is not relevant whether he was arrested on the secondary offense.”
The trial court’s ruling was erroneous. Section 12022.1, subdivision (b) specifically states that a defendant is subject to the enhancement if he is arrested for the secondary offense.The lack of evidence that Harr was arrested for stalking Carolyn in violation of section 646.9, subdivision (b) renders the enhancement unsupported by substantial evidence.
The People cite two cases that they suggest dispose of the statutory requirement that the defendant be arrested for the secondary offense. These cases, People v. Adams (1993) 6 Cal.4th 570, 572 and People v. Ormiston (2003) 105 Cal.App.4th 676, 687, do not stand for such a proposition, nor do they even address the issue.
We will remand the matter for retrial of the enhancement. The double jeopardy clause does not prevent retrial of an enhancement set aside because of a trial error. (Burks v. U.S. (1978) 437 U.S. 1, 14, citing United States v. Tateo (1964) 377 U.S. 463, 465.) The erroneous exclusion of evidence that renders a verdict unsupported by the evidence is a trial error for which retrial is permissible. (People v. Reynolds (1989) 211 Cal.App.3d 382, 390.)
II. Lesser Included Offense
Harr contends that his convictions for counts 5 (misdemeanor contempt of court for violation of a court order (§ 166, subd. (a)(4)) and 6 (misdemeanor contempt of court for violation of a court order (ibid.) were necessarily included offenses to counts 3 (stalking [Carolyn]) and 4 (stalking [Brian]). The court orders were the restraining orders issued to protect Carolyn and Brian.
The issue of lesser included offenses arises because of the tension between sections 954 and 654. Section 954 provides that an accusatory pleading may charge different statements of the same offense, and that the defendant may be convicted of “any number of the offenses charged.” Section 654 provides that while a defendant may be convicted of any number of offenses charged, he or she may be sentenced only once for each criminal act. (Id., subd. (a).)
People v. Pearson“But despite the seemingly absolute language of section 954 (‘the defendant may be convicted of any number of the offenses charged’), there is an exception to the general rule permitting multiple convictions. ‘Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]’ [Citation.] ‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” [Citations.]’ [Citation.]” (People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega), overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1229.)
The test in Ortega is commonly referred to as the elements test. “The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288.) A defendant cannot be convicted of a necessarily included offense that meets the elements test. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) “Under the ‘elements’ test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense.” (Ibid.)
The elements the prosecution must prove when a defendant is charged with stalking are: (1) The defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person; (2) the defendant made a credible threat with the intent to place the other person in reasonable fear for his or her safety or for the safety of his or her immediate family; and (3) the defendant’s conduct was not constitutionally protected. (CALCRIM No. 1301; § 646.9, subd. (a).)
The elements the prosecution must prove when a defendant is charged with violation of a court order are: (1) A court lawfully issued a written order; (2) the defendant knew about the court order and its contents; (3) the defendant had the ability to follow the court order; and (4) the defendant willfully violated the court order. (CALCRIM No. 2700; § 166, subd. (a)(4).)
It is obvious that a defendant can be convicted of stalking without a temporary restraining order or other court order being in place. Accordingly, the crime of stalking can be committed without also violating a court order. Therefore, violation of a court order is not a lesser included offense of stalking.
In this case, Harr was charged with stalking while a court order was in effect pursuant to subdivision (b) of section 646.9, which increased the punishment for a violation of subdivision (a) of section 646.9. Specifically, the crime no longer was a wobbler but a felony. Moreover, the penalty once convicted was increased. Subdivision (b), however, did not create a new crime. It is a penalty provision that is separate from the underlying offense. (People v. Muhammad (2007) 157 Cal.App.4th 484, 490-491.) A penalty provision is not an element of the crime. (Ibid.) Therefore, violating a court order and stalking have different elements, and one cannot be a lesser included offense of the other.
III. Ineffective Assistance of Counsel
We return now to Harr’s claim that trial counsel was ineffective.He contends that his trial attorney was diagnosed with Alzheimer’s disease shortly after the conclusion of the trial. There is no admissible evidence in the record to confirm this assertion, merely statements by counsel hired after the trial. Even if the evidence established trial counsel was diagnosed with the disease, the diagnosis does not establish that counsel was ineffective.
Harr’s argument is framed as the assertion that the trial court erroneously denied his motion for a new trial based on the alleged ineffective assistance of counsel. Since Harr can prevail on this argument only by establishing his counsel was ineffective, we turn directly to this issue.
To prevail on this argument, Harr was required to establish that “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
Harr begins his argument by attempting to distinguish Dows v. Woods (9th Cir. 2000) 211 F.3d 480. Harr concedes that Dows stands for the proposition that trial counsel who is suffering from early stages of Alzheimer’s disease is not per se ineffective. He then argues that because trial counsel was diagnosed with the disease only one month after the end of trial, he “probably” was in the later stages of the disease during trial. This argument fails. There is no competent evidence anywhere in the record of the progress of the disease. Thus, we cannot discern what effect, if any, the disease might have had on the performance of defense counsel. We will not consider arguments unsupported by the record or authority.
Harr next contends that trial counsel’s closing argument was deficient. Assuming counsel’s argument, which essentially was a plea for mercy, fell below an objective standard of reasonableness, Harr is not entitled to a new trial because he cannot establish he would have obtained a better result with a different approach to closing argument. The evidence of his guilt was overwhelming, with numerous witnesses testifying to the events, including police officers who observed his conduct. We cannot imagine what trial counsel could have argued that would have obtained a better result.
Harr also contends that counsel should have attacked the on-bail enhancement as unsupported by the evidence. Since the enhancement is being reversed because of an erroneous trial court ruling, Harr can show no prejudice. He can make any argument he may have at the retrial of the enhancement, should the People decide to pursue the issue. And, there is no evidence that this failure was due to the Alzheimer’s disease or is indicative of any other widespread deficiencies in counsel’s performance.
To the extent that Harr claims trial counsel was ineffective because he did not argue the charges were not supported by substantial evidence, we have rejected these claims. To the extent that Harr claims his attorney should have objected to factual errors in the prosecutor’s closing argument, the jury was instructed to rely on the testimony to determine the facts, not the prosecutor’s argument.
Harr’s only attempt to address the prejudice requirement of his claim is a citation to United States v. Cronic (1984) 466 U.S. 648, which, according to Harr, holds that if trial counsel’s conduct is egregiously prejudicial, the defendant is relieved from the responsibility of showing prejudice. Trial counsel’s conduct in this case was not egregiously prejudicial. Harr’s guilt was established by numerous witnesses presenting overwhelming evidence of violation of the statutes. There is nothing in the record to establish that Harr had any defense to the charges or any plausible explanation for his conduct. While the trial was not perfect, it was fair, and that is all to which Harr is entitled. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
DISPOSITION
The finding on the “on bail” enhancement (§ 12022.1, subd. (b)) is vacated and remanded for retrial and for resentencing after the conclusion of the enhancement proceedings. The remainder of the judgment is affirmed.
WE CONCUR: GOMES, J., DAWSON, J.