Opinion
B219825
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY LEMONT JACKSON, Defendant and Appellant.
Julie Sullwold-Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA105017)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eleanor Hunter, Judge. Affirmed as modified and remanded.
Julie Sullwold-Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jeffrey Lemont Jackson guilty on count 2 of corporal injury to a cohabitant/child's parent, with a finding he personally inflicted great bodily injury (GBI) under circumstances involving domestic violence (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e)) and guilty on count 4 of assault with a deadly weapon (§ 245, subd. (a)(1)). In a bifurcated proceeding, the trial court found that Jackson had suffered two prior strike convictions and a prior conviction of a serious felony. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a).) The court thereafter denied Jackson's motion to strike one of the prior strike convictions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced Jackson to an aggregate term of 35 years to life as follows: 25 years to life on count 2 under the "Three Strikes" law, plus 5 years for the GBI enhancement, plus 5 years for the prior serious felony. The court stayed imposition of sentence on count 4 under section 654. We find that Jackson's aggravated assault conviction on count 4 should be reduced to simple assault (§ 241, subd. (a)). As modified, we affirm the judgment. The cause is remanded to the trial with directions to prepare a new abstract of judgment. Jackson's aggregate sentence remains the same.
All further section references are to the Penal Code.
FACTS
N.J. (the victim) worked as a prostitute. Sometime around November 2006, N.J. met Jackson, and he became her "pimp." Shortly thereafter, N.J. and Jackson started living together in a house in the City of Compton where he rented a room. In November 2007, N.J. gave birth to Jackson's daughter. N.J. and Jackson frequently argued during their relationship. Some of these arguments turned violent, with Jackson hitting, slapping or spitting on N.J. On November 16, 2008, during another argument, Jackson jumped on N.J. as she sat on the floor. Jackson forced N.J. down on her back and choked her with both hands as he sat on top of her on the floor. When N.J. lost consciousness, Jackson left her alone for a moment. When N.J. began reviving, Jackson returned and put her in a "headlock" as she tried to get up. Eventually, Jackson stopped again, and N.J. went to the bathroom. Her eyes were very red. Jackson looked "scared" when he saw her face and took N.J. to a local hospital.
Emergency room personnel noted N.J. as suffering from "bilateral conjunctival hemorrhages" and "bilateral eye swelling." This meant both her eyes were red, more so than normal, and more red than from a simple irritation of the eyes, "really dark red out of the ordinary." N.J. also had red spots on her cheeks, which were not typical of a simple rash. N.J. denied any domestic violence and told a physician's assistant (PA) that her condition was caused by crying about family problems. However, her injuries did not fit her symptoms. Because N.J. repeatedly denied any domestic violence, the PA did not report any suspected criminal activity, but did refer N.J. for mental health services. On November 26, 2008, 10 days after Jackson attacked her, N.J. filed a police report.
N.J.'s medical records were extensively discussed during the prosecution's evidence.
In March 2009, the People filed an information alleging four offenses against Jackson: attempted murder (§§ 664, 187, subd. (a); count 1); corporal injury to a cohabitant/child's parent, with an allegation Jackson inflicted GBI in circumstances involving domestic violence (§§ 273.5, subd. (a), 12022.7, subd. (e); count 2); dissuading a witness (N.J.) from reporting a crime (§ 136.1, subd. (b)(1); count 3); and assault with a deadly weapon, to wit, hands (§ 245, subd. (a)(1); count 4). The information further alleged that Jackson had two prior strike convictions — one for robbery in 1988 and the other for corporal injury to a cohabitant in 2000. The prior robbery conviction was also alleged to be a prior serious felony conviction (§ 667, subd. (a)(1)).
In the summer of 2009, the People prosecuted the charges to a jury, presenting evidence establishing the facts summarized above. Jackson testified on his own behalf; he attributed N.J.'s physical injuries on November 16, 2008, to a fight between N.J. and another woman, Marguerite Nunnley. According to Jackson, N.J. and Nunnley fought when Nunnley arrived at the house to tell Jackson that she was pregnant with his child.
On July 27, 2009, the jury found Jackson guilty as charged on counts 2 and 4 of corporal injury to a cohabitant/child's parent and assault with a deadly weapon. The jury found him not guilty of attempted murder as charged in count 1 and deadlocked on count 3, dissuading a witness.
On October 2, 2009, the trial court found the prior conviction allegations against Jackson to be true. The court then sentenced Jackson as noted at the outset of this opinion. The court dismissed count 3 at the time of sentencing.
Jackson filed a timely notice of appeal.
DISCUSSION
I. Assault With a Deadly Weapon
Jackson contends his conviction for assault with a deadly weapon (ADW) must be reversed because the prosecution relied upon a legally unsustainable theory — hands as a deadly weapon — and presented no alternate theory to the jury to support an aggravated assault charge. The People concede that bare hands are not a deadly weapon as a matter of law (citing People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar)),but argue that Jackson's aggravated assault conviction may be affirmed because the jury found that Jackson inflicted GBI on the victim in the commission of the corporal abuse offense, and Jackson "therefore could not possibly have been prejudiced" (again citing Aguilar).We find Jackson's argument is meritorious.
In Aguilar, the Supreme Court "granted review to determine whether hands or feet can constitute 'deadly weapons' within the meaning of [section 245, subdivision (a)(1)]." (Aguilar, supra, 16 Cal.4th at p. 1026.) The court ruled that the answer was no and also found that the prosecutor "misspoke" in part of his argument to jury by stating that feet or hands could be deadly weapons. (Id. at pp. 1029-1035.) Notwithstanding these rulings, the court did not reverse the defendant's aggravated assault conviction because the information had been alleged in the alternate language of the aggravated assault statute, i.e., ADW, or by means of force likely to produce GBI. In addition, both the instructions to the jury and the prosecutor's argument to the jury had presented the two theories of aggravated assault to the jury — ADW, or assault by means of force likely to produce GBI. As the court concluded, the jury had been specifically invited to consider the evidence of blows from fists under the rubric of force likely to produce GBI. (Id. at pp. 1037-1038.)
Jackson's current case is different from Aguilar. In Jackson's current case, the information alleged the offense of aggravated assault with this language: "assault with a deadly weapon . . . , to wit, hands," and did not allege an aggravated assault in the alternate language of section 245, subdivision (a)(1), i.e., it did not allege an assault in the alternate language: "or by any means of force likely to produce great bodily injury." (Italics added.) Moreover, apparently in recognition of the information as framed, the trial court modified the standard aggravated assault instruction (CALCRIM No. 875), deleting the language reading "force likely to produce great bodily injury" from the initial part of the instruction. As modified, CALCRIM No. 875 told the jury that Jackson was charged "with assault with a deadly weapon, to wit his hands." While the remainder of the jury instructions still included references to "great bodily injury," those references, in our view, would have been understood by the jury to be related to the presented theory of ADW, e.g., a deadly weapon is an instrument that is inherently deadly or dangerous, or which may be used in such a way that it is capable of causing GBI. We do not share the People's perspective that the jury was invited to find Jackson guilty of aggravated assault under an alternate theory, i.e., assault by means of force likely to produce GBI. The fact that the jury found GBI ancillary to the corporal injury offense charged in count 2 is not helpful to the People. We agree with the People that, had the jury been asked to find GBI in the commission of the assault, it is likely the jury would have done so. But Jackson was not charged with the offense of assault by means of force likely to produce GBI, and that theory was not put to the jury, directly or indirectly. II. Marsden Motions
Jackson contends all of his convictions must be reversed because the trial court erred in denying his three Marsden motions. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)We disagree.
The Governing Legal Principles
A defendant's right to appointed counsel does not include the right to demand the serial appointment of different lawyers until he or she finds a lawyer to his or her liking. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) When a defendant seeks to discharge his or her appointed lawyer and substitute a new lawyer, Marsden dictates that the trial court must permit the defendant to explain the basis of his or her dissatisfaction. A defendant is entitled to relief when he or she shows that the first appointed counsel is providing ineffective representation, or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Fierro (1991) 1 Cal.4th 173, 204, questioned on a different point in People v. Letner and Tobin (2010) 50 Cal.4th 99, 205-206.)
When credibility questions arise between a defendant's assertions and counsel's explanations regarding the representation, the court may accept counsel's explanations. (People v. Smith (1993) 6 Cal.4th 684, 696.) A defendant is not entitled to relief merely because he or she claims a disagreement with counsel over reasonable tactical decisions. (People v. Memro (1995) 11 Cal.4th 786, 858.) As noted, the trial court's ultimate task is to determine whether appointed counsel's representation is constitutionally ineffective, or whether an irreconcilable conflict exists. (People v. Fierro, supra, 1 Cal.4th at p. 204.)
A trial court's decision to deny a Marsden motion is reviewed under the abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) We will not find an abuse of discretion unless the defendant has shown that a failure to replace the appointed counsel resulted in a substantial impairment of his or her right to assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)
Analysis
Jackson made three Marsden motions: on March 5, 2009, moments after the first witness had been sworn for his preliminary hearing; on June 30, 2009, the date his case was called for jury trial; and on July 20, 2009, during voir dire. Jackson contends the trial court in each instance abused its discretion. We disagree. The First Marsden Motion
When given his opportunity to voice his complaints, Jackson stated he wanted the trial court independently to read a letter from N.J., the victim, recanting her allegations that Jackson attacked her. The trial court explained that, for legal reasons, it could not independently act on the letter, but that the letter could be introduced as evidence if it was appropriate. When Jackson asked whether his counsel had given the letter to the court, the court told Jackson that his attorney had satisfactorily explained that she intended to use the letter for cross-examination during the preliminary hearing. Jackson also made allegations of witness tampering, but admitted that he had not discussed them with his attorney.
Jackson further complained that he did not have contact with his attorney until five minutes before the preliminary hearing, so there had been no opportunity to discuss the case with her. Jackson also expressed concern that N.J. was being coerced into testifying. Trial counsel explained that she had told Jackson that she could not object to N.J. being a witness, but could ask her on cross-examination whether she were being forced to testify.
The court denied Jackson's Marsden motion. The court's comments at the time of its ruling show it found defense counsel was "an experienced attorney" and had "obviously prepared" for the preliminary hearing. At that point, defense counsel told that court that she believed Jackson wanted to "proceed pro per" and asked the court to inquire whether that was Jackson's intent. When the court directly asked Jackson if he wanted to represent himself, Jackson replied, "No." The court ended the Marsden hearing by advising Jackson to let his defense counsel "do her job."
Without specific reference to his first Marsden motion, Jackson argues he made a "strong showing" that there existed a state of disagreement, bad relationship, and lack of communication between him and his lawyer in regard to preparation of a defense, so that the denial of his motion deprived him of his constitutional right to effective assistance of counsel. (Citing United States v. Williams (9th Cir. 1979) 594 F.2d 1258, 1260.) We do not share Jackson's perspective insofar as it applies to his first Marsden motion. At the most, the record shows that Jackson had a generalized dissatisfaction with his appointed counsel over an issue that Jackson wrongly believed could end his case immediately, i.e., the victim's purported recantation. And, of course, all of this was unfolding at an early stage of the case. The record does not establish, as Jackson contends, that he had such a profound lack of confidence in counsel at the time of his first Marsden motion that the denial of the motion resulted in a denial of his right to effective representation. In other words, the record does not support the conclusion that the trial court abused its discretion when it denied Jackson's first Marsden motion. The Second Marsden Motion
On June 30, 2009, Jackson's case was called for jury trial. As soon as he entered the master calendar courtroom, Jackson made a Marsden motion. When given his opportunity to voice his complaints, Jackson stated that defense counsel would become angry with him when he asked questions, that she would not answer his questions, and that she told him she had a "heavy schedule." Jackson said that defense counsel had advised him the first day they met to seek a plea agreement, without first asking him for his side of the story. Jackson believed that defense counsel had advised him to take a deal because of her schedule. Jackson complained that he had only seen the investigator once. He also asserted that he and defense counsel had several arguments and she even slammed a door in his face. Jackson stated that defense counsel treated him like a "degenerate common street thug." He complained that it would be detrimental to keep defense counsel because she had shown a lack of interest, had behaved unprofessionally and was overwhelmed. According to Jackson, during their last communication before coming into the courtroom, defense counsel told him that he had to get another attorney or go pro. per.
Defense counsel informed the trial court that she had "lengthy conversations" with Jackson. She had advised him on that very day that, when they received a new trial date, she would confer with him again in lockup. Jackson had a lot of questions, and she had spent time answering his questions. Defense counsel told the court she was prepared, and she explained why she had recommended accepting the People's plea offer; she indicated that she needed a continuance to interview the victim involved in Jackson's prior spousal abuse conviction alleged by the People. Defense counsel stated that she had explained to Jackson "over and over" that she did not think that he would get convicted of attempted murder, but, because he was facing a three strikes case, that a conviction for the section 273.5 spousal battery count would still carry a life sentence. Defense counsel explained that Jackson wanted "to control the case." She had advised Jackson that he had the right to represent himself if he so desired.
Jackson claimed that defense counsel had become very upset with him about a question that he thought was an intelligent question. The question involved the procedure for pretrial proceedings. Jackson stated that there were many witnesses he had provided who were supposed to be interviewed, and he did not know what had happened during the interviews. Defense counsel informed the court that all of the witnesses had been subpoenaed. Defense counsel disputed that Jackson did not know what was going on, or the actual trial strategy. Defense counsel informed the court that the proffered witnesses would testify about N.J.'s prior conduct in violating restraining orders; they could not provide information regarding the incident. Defense counsel summed up that "[t]hese are things we have gone over, over and over again, Your Honor."
The trial court denied Jackson's Marsden motion, finding that it appeared that defense counsel had done all that was necessary, and that there had not been a sufficient breakdown to cause defense counsel to be an ineffective advocate on his behalf. Also, that defense counsel had a lot of experience and was always prepared, and that the court was convinced she was prepared in this case. To the extent that Jackson was not happy, or he was offended, the court found that these perceptions on his part did not mean that defense counsel was unable to render effective assistance of counsel at trial.
Before the Marsden hearing ended, Jackson asked for a continuance to see if he could get his own lawyer or his own assistance. The trial court denied the request, noting that "[t]his is the day of trial." The court found Jackson's request to be a "delay tactic." At that point, Jackson asked, "What about pro per?" The trial court responded that it could not answer his questions because the court was not his lawyer.
Again, Jackson's argument is not specifically focused on his second Marsden motion. Be this as it may, the record does not establish, as Jackson contends, that he had such a profound lack of confidence in counsel at the time of his second Marsden motion that the denial of the motion resulted in a denial of his right to effective representation. In denying Jackson's second Marsden motion, the trial court plainly gave credence to the information provided by defense counsel. We see nothing in the record or in Jackson's arguments on appeal that persuades us that the trial court's assessment should be thrown on the ash heap. In short, the record, construed under the applicable standard of review, does not support the conclusion that the trial court abused its discretion when it denied Jackson's second Marsden motion. Indeed, the trial court's decision was well-reasoned and wholly appropriate given the showing put before it. The Third Marsden Motion
On Friday, July 17, 2009, the trial court summoned a panel of prospective jurors, and voir dire began. On Monday, July 20, the prosecutor, defense counsel and the trial court discussed issues concerning allowable impeachment of witnesses prior to the resumption of voir dire. At the end of these discussions, defense counsel informed the court that Jackson wanted to make a Marsden motion.
When given his opportunity to speak to the court, Jackson complained about a lack of communication with defense counsel, that his witnesses had not been subpoenaed, and that, when he asked to review the evidence, defense counsel refused. Jackson further complained that he had not been able to discuss his case with the investigator. When the trial court responded that Jackson had to rely on his lawyer's advice and decisions about witnesses and the investigator, Jackson said that his lawyer listened to the evidence, but there were no discussions about it. Jackson also claimed a lack of input on trial strategy, and that he had only spoken to defense counsel briefly on two to five occasions.
Jackson said that he had tried to go pro. per. at the last Marsden hearing, but the court had denied it. Defense counsel correctly told the court that Jackson had "expressly stated" that he did not want to go pro. per. at the time of the first Marsden hearing. The trial court noted that the courts take pro. per. requests very seriously. Jackson responded that he believed that his request had occurred at the second Marsden hearing, and that a different judge (Judge Cheroske) had told him that he was trying to delay the court.
Jackson wanted motions for dismissal to be filed. He told the court he was not trying to control the case, but that defense counsel would not discuss it with him, and, as a result, he did not know what was going on in the case and did not know how they were fighting the charges. Jackson claimed that he did not know what evidence was going to be presented and that he had not reviewed the discovery. According to Jackson, his life was on the line, and he had no confidence in his attorney.
Defense counsel told the court that Marguerite Nunnley acted as liaison between Jackson and the investigator. Defense counsel informed the court the investigator called her periodically with updates regarding Jackson's feelings about the case. She informed the court that witnesses were on call for impeachment purposes, and that the investigator had done all that defense counsel believed was needed for the case. She further informed the court that she had been discussing jury selection with Jackson and was surprised by his claim that they were not communicating, because, in her view, they communicated "fairly well." She had just spoken to Jackson prior to the case being called.
On more specific matters, defense counsel told the court that the strategy for the case was the credibility of Jackson versus N.J. The original theory that Nunnley caused N.J.'s injuries experienced difficulty due to Jackson's previous conviction for domestic violence involving Nunnley as the victim. Trial defense counsel felt the strategy would hurt Jackson's case. When the court asked about a letter to which Jackson had referred (apparently N.J.'s recantation the letter that was an issue at the time of the preliminary hearing), defense counsel told the court that the prosecutor had informed her that it was going to be used as an exhibit by the People, so any complaint about not using the letter was not an issue as it would be in evidence.
The trial court did not abuse its discretion in denying Jackson's third Marsden motion. Disagreements between a defendant and his or her appointed counsel over trial strategy, standing alone, are not a ground for the appointment of new counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 151 (Lara).)Moreover, because it was within the trial court's discretion to believe either Jackson or his defense lawyer, and the court denied Jackson's motion, we must accept that the court found defense counsel's description of the relationship to be the more accurate. Looking at defense counsel's description of the relationship, we cannot say that it shows an irreconcilable breakdown of the relationship. Jackson argues in his opening brief on appeal that defense counsel failed to do adequate work regarding witnesses and evidence, but in the trial court he did not identify any specific witness or piece of evidence not properly considered by defense counsel, and he has not done so on appeal. These generalized objections are not sufficient to support a conclusion that new counsel was required. If there is something more, it is not cognizable on the record on appeal. We simply are not persuaded that the state of the relationship between Jackson and his defense attorney was so sour that it substantially impaired his right to assistance of counsel.
III. Mistrial
Jackson contends his conviction must be reversed because the trial court erred in failing to sua sponte order a mistrial, and defense counsel rendered ineffective assistance of counsel in failing to move for a mistrial. We disagree.
The Trial Events
Julia Anita Smith owned the house in which Jackson rented the room where he and N.J. lived. Smith's family had known Jackson's family since their childhoods; Smith referred to Jackson as "Lucky." During her direct examination, Smith testified that she heard noises coming from Jackson's room on the night of November 16, 2008. During cross-examination, defense counsel asked Smith if she had called the police when she heard the noises, and Smith conceded that she did not. Defense counsel then asked this question: "You didn't feel it was necessary to call the police?" and Smith answered: "No, because Lucky have a thing of threatening people." The reporter's transcript then shows, in our view, a spirited attempt by defense counsel to show that Smith was embellishing her testimony either to cover for her own disinterest in helping N.J., or to paint Jackson as a much worse person than Smith had honestly experienced. During these exchanges, Smith testified she was "scared" of Jackson, and "seen him beat women" in her home (but she never called police), and that he was a "very threatening person" and "threatened [her] life, too" (but she never attempted to evict him). Defense counsel then began a line of questions resulting in these exchanges:
"[DEFENSE COUNSEL]: Now, for whatever reason, you rented a room to him, correct?
"[SMITH]: Um-hum.
"[DEFENSE COUNSEL]: Whoever he brought, you rent the room?
"[SMITH]: Yes, ma'am.
"[DEFENSE COUNSEL]: And you didn't have to do that, am I correct?
"[SMITH]: Correct.
"[DEFENSE COUNSEL]: You chose to rent to him?
"[SMITH]: Yes, I did.
"[DEFENSE COUNSEL]: Is that correct?
"[SMITH]: Yes.
"[DEFENSE COUNSEL]: Okay. And at some point you're saying you felt threatened by him?
"[SMITH]: Yes, there were times, yes.
"[DEFENSE COUNSEL]: Okay. [Now] I'm talking about the 10-day period between November the 16th [the date N.J. was allegedly attacked] and November the 26 [the date she went to the police]. [¶] . . . [¶]. . . In between November 16th and November 26th, it's now been approximately two years that he's been living there, correct?
"[SMITH]: Um-hum.
"[DEFENSE COUNSEL]: Is that a yes, ma'am?
"[SMITH]: Yes, ma'am.
"[DEFENSE COUNSEL]: You're free to come and go, correct?
"[SMITH]: Yes.
"[DEFENSE COUNSEL]: And he's paying you rent, so he's giving you money, right?
"[SMITH]: He wasn't at that time, no.
"[DEFENSE COUNSEL]: Okay. So he stopped paying you money, you're still letting him live there?
"[SMITH]: Like I said, it's the circumstances pertaining to that, the reason that he was not paying me rent.
"[DEFENSE COUNSEL]: Okay. You let him stay because he's a friend?
"[SMITH]: Huh?
"[DEFENSE COUNSEL]: Did you let him stay with you because he's a friend?
"[SMITH]: I've known Lucky all my life. Our family have known each other all our life. When he went his way in his time of life, I went my way. [¶] When we came back in contact with each other he was with a different woman. He asked me could he rent from me until he got himself together. I did that. [¶] During the period of that time, I seen the way that he treated women. Okay. I did not like that. I really did not like that.
"[DEFENSE COUNSEL]: So why . . . didn't you have him leave?
"[SMITH]: Because he threatened me, also.
"[DEFENSE COUNSEL]: When, ma'am?
"[SMITH]: Okay. I didn't do nothing about it. I didn't do nothing about it at the time.
"[DEFENSE COUNSEL]: When did he threaten you?
"[SMITH]: I can't remember every time he threatened me, but if you want to get right down to it, the man raped me and in my own house.
"[DEFENSE COUNSEL]: When did that happen, ma'am?
"[SMITH]: Okay. If you really want to know the damn thing about it, he raped me. This man raped me in my own house and he knew me all my life. He knew me all my life. He knew my parents. And he turned around and he come in my bed and he took my pussy. He hurt me bad.
"[DEFENSE COUNSEL]: When did that happen, Miss Smith?
"[SMITH]: This was during the time. Now, this was just maybe before the time that [N.J.] came. I'm sorry, Your Honor.
"[DEFENSE COUNSEL]: So this was around the time that [N.J.] came?
"[SMITH]: If you want to know the truth about it.
"[DEFENSE COUNSEL]: So this was during the time that [N.J.] came and [she] hadn't had the baby
"[SMITH]: Was maybe after, afterwards.
"[DEFENSE COUNSEL]: Okay. I just want to be clear, ma'am.
"[THE COURT]: Why don't we take a break." (Italics added.)
After the recess, defense counsel resumed her cross-examination of Smith, and directly addressed Smith's rape allegation. During that line of questioning, Smith stated that the rape had been a "traumatic" event, but she could not remember when it occurred. She "would say" it occurred in 2008 (the previous year), but she could not remember the date or even the month. She had not reported the rape to the police because she still had "love for Lucky." In Smith's words: "You know, I forgave him for that. You know, it's just at times his threats kind of bothers me sometimes." Smith finished her testimony during the afternoon trial session. No issue was made regarding her rape allegation. One more witness testified, and the jury was admonished and excused for the day. The reporter's transcript shows that, when trial resumed (July 23, 2009), no issue was made regarding Smith's rape allegation.
Analysis
Jackson contends that a mistrial became mandated upon Smith's statements about being raped. In that vein, he argues that a mistrial should have accomplished by one of two paths: either the trial court should have sua sponte declared a mistrial, or his defense lawyer should have moved for a mistrial, which, says Jackson, "probably" would have been granted. We are not persuaded that Jackson's convictions must be reversed based on the mistrial issue.
A trial court may declare a mistrial when it is "apprised of prejudice that it judges incurable by admonition or instruction." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Whether a particular incident is incurably prejudicial is somewhat speculative, and, for this reason, a trial court is vested with considerable discretion in determining whether to declare a mistrial. (Ibid.)Moreover, because double jeopardy attaches when a jury is discharged without a verdict, unless the defendant consents thereto or "legal necessity" requires it, a trial court should proceed with caution in sua sponte declaring a mistrial, as doing so in the absence of legal necessity may bar the defendant's retrial. (See Curry v. Superior Court (1970) 2 Cal.3d 707, 712-714 (Curry).)
"In California, legal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity." (Curry, supra, 2 Cal.3d at pp. 713-714.) The better practice is for a court to complete trial, and, in the event of a conviction, address the matter on a motion for new trial. (Id. at p. 714; see also Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1529.)
Jackson's arguments fail to persuade us to assign any fault to the trial court for declining to sua sponte declare a mistrial during Smith's testimony. Certainly, the court did not abuse its discretion. As Division Two of our court has explained, a sua sponte declaration of a mistrial should be "an extremely rare event," and avoided in favor of the better practice of addressing trial problems by posttrial motions. (Carrillo v. Superior Court, supra, 145 Cal.App.4th at p. 1529.)
Nor was counsel's representation deficient in some manner for failing to request a mistrial. In order to be entitled to relief on the ground of ineffective assistance of counsel, a defendant must establish two elements: (1) that counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of defendant's trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Ledesma (1987) 43 Cal.3d 171, 215.) When evaluating the first element, our review of counsel's performance is deferential. (See In re Jones (1996) 13 Cal.4th 552, 561.) We will not second-guess counsel's performance based merely on defendant's conviction; instead, a fair assessment of counsel's performance requires that every effort is made to eliminate the distorting effects of hindsight — by reconstructing the circumstances at the time of counsel's challenged conduct and evaluating the conduct from counsel's perspective at that time. (Ibid.) Because of the difficulties inherent in making this evaluation, we will presume that counsel's conduct fell within a range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged conduct might be considered sound trial strategy. (Ibid.) However, deference is not abdication and may not be used to insulate counsel's performance from meaningful scrutiny. (Ibid.) In summary, we presume that counsel's decision not to raise a claim at trial was a reasonable, tactical one, unless the record affirmatively establishes otherwise. (People v. Lucas (1995) 12 Cal.4th 415, 443.)
With these standards in mind, we decline to find that the decision by Jackson's counsel to forego a mistrial motion fell below an objective standard of reasonableness under prevailing professional norms, i.e., that the decision could not have been made for a reasonable tactical purpose. When witness Smith unexpectedly blurted out that Jackson had raped her, defense counsel had two choices: (1) she could have moved for an immediate mistrial, or (2) she could have tried to show that Smith was a storyteller. The record shows that defense counsel decided to pursue the second tactical path, and we cannot say that the chosen path, either in its election or its implementation, fell below the constitutionally required standard of performance. The record shows that defense counsel's cross-examination effectively marginalized Smith's effectiveness as a legitimate prosecution witness. Further, Jackson acknowledged N.J.'s injuries, and the case became a contest of the truth between N.J.'s testimony that Jackson hurt her, and Jackson's counter testimony that a third party harmed N.J. The fact that Jackson did not win the contest of testimony does not show that defense counsel's decision not to seek a mistrial during Smith's testimony was not a reasonable decision at the time.
Tactical decisions are generally not deemed reversible, and, to the extent the record does not disclose why counsel acted or failed to act in a certain manner, we will affirm the judgment. (People v. Hart, supra, 20 Cal.4th at pp. 623-624.) Any explanation for counsel's actions must be presented by means outside the trial record. While Jackson is serving a life sentence, his lengthy incarceration is more the result of the Three Strikes law than his defense counsel's errors during jury trial of the substantive criminal charges. The result of Jackson's jury trial was fairly positive. He was acquitted of the attempted murder charge, and the jurors hung on the charge that he tried to dissuade N.J. from reporting his attack. The jury's corporal injury and assault findings are not surprising, given that it was an undisputed fact that N.J. had suffered GBI from trauma. Had a mistrial been declared upon a defense request, Jackson would have been exposed anew to the attempted murder and dissuading counts upon retrial.
IV. Abstract of Judgment
We note that the abstract of judgment does not accurately reflect the trial court's sentence. When the trial court orally pronounced sentence, it imposed the following terms: 25 years to life on count 2, plus a five-year conduct enhancement for the infliction of GBI (§ 12022.7) and an additional five-year status enhancement for his prior serious felony (§ 667, subd. (a)(1)); imposition of sentence stayed on count 4 pursuant to section 654. The court acknowledged count 3 was hung and dismissed it. The abstract of judgment indicates a five-year sentence on count 2; the stay on count 4; five years for the GBI enhancement; and 25 years to life pursuant to the Three Strikes law. The abstract of judgment must be corrected to reflect the trial court's actual imposition of sentence. The abstract of judgment must also be modified as to count 4, which we previously noted must reflect a conviction for simple assault.
DISPOSITION
The case is remanded to the trial court with directions to modify the abstract of judgment to reflect a conviction for simple assault on count 4, and to correct the clerical errors and send the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.