Opinion
C081901
03-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY HOWARD JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F06656)
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel for defendant Jimmy Howard Jones filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. Thereafter, defendant filed a supplemental brief arguing that reversal is warranted because trial counsel rendered ineffective assistance. After reviewing defendant's supplemental brief and the entire record, we find no arguable issue and affirm the judgment. However, we will order the trial court to correct several errors in the abstract of judgment.
I. BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In October 2015, defendant and his girlfriend, Lorie Arnold, lived in a tent in the backyard of defendant's stepfather's house. On October 28, 2015, Sacramento Police Officer Michael Boyd was dispatched to this residence after receiving a report of domestic violence in progress. Upon his arrival, Officer Boyd noticed that Arnold had a cut above her left ear and blood running down her neck. He also saw bruising on Arnold's arms. Arnold spoke with Officer Boyd and told him that defendant had inflicted the injuries by hitting her with a flashlight. Paramedics treated Arnold and then transported her to UC Davis Medical Center. She received three or four stitches for the cut on her head.
At trial, Officer Boyd testified that defendant's aunt, Judy Fallon, told him that she heard defendant and Arnold fighting in the backyard on October 28, 2015. Fallon also said that Arnold had come into the house on several previous occasions claiming that defendant had hit her. Officer Boyd further testified that Fallon told him that she had witnessed defendant hit Arnold one time during the last year. This testimony was offered to rebut Fallon's claims that she had not talked to Officer Boyd on October 28, 2015, and had never seen defendant hit Arnold or engage in any physical violence towards her.
Arnold complained of pain in her head, neck, chest, right arm, left thigh, and left ear.
At the hospital, Officer Boyd interviewed Arnold. Arnold explained that defendant hit her on a daily basis and had cracked her head open a few months earlier. She further explained that defendant had woken up in a bad mood that morning and began yelling at her "like he always does." He then picked up a large yellow flashlight and hit her in the head and body numerous times. Arnold also said that defendant choked her, and that when he stopped she ran inside the house and called the police. The 911 call was played for the jury. During the call, Arnold told the 911 operator that defendant had "just beat [her] up" with a flashlight.
While Arnold was at the hospital, she told a social worker that defendant had hit her in the head with a flashlight and attempted to strangle her. She also said that defendant had been violent with her on about six prior occasions.
The police searched the property but did not locate the flashlight. A search of defendant revealed 2.74 grams of methamphetamine, a pipe used to smoke methamphetamine, and pepper spray.
At trial, Arnold testified that defendant did not hit or choke her on October 28, 2015. She also claimed that defendant had never hit her before, and denied telling the social worker that defendant had hit or choked her or was violent with her in the past. She explained that if she had made such accusations, they were lies. As for the altercation that occurred on October 28, 2015, Arnold testified that she "picked an argument with [defendant]" because he was not paying enough attention to her. During that argument, she accused defendant of cheating on her. She explained that she yelled at defendant, charged at him, and grabbed his arm, which caused them to fall. Arnold claimed that she sustained the injury to her head when she landed on a speaker next to the bed. Arnold also claimed that her other injuries were self-inflicted. She explained that she suffers from a mental disorder that causes her to hit and pinch herself when she gets angry. She described her demeanor at the time of the altercation as "insane," noting that she was going through menopause, which caused her to act "crazy." She also noted that she had taken pills that morning to stabilize her mood.
A jury found defendant guilty of inflicting corporal injury on a cohabitant, resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon, a flashlight (§ 245, subd. (a)(1)), possession of methamphetamine (Health & Saf. Code, § 11377), possession of tear gas, or a tear gas weapon, having previously been convicted of a felony (§ 22810), and possession of a device used for smoking a controlled substance (Health & Saf. Code, § 11364). The jury also found true the allegations that defendant had personally used a deadly weapon, a flashlight (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury in circumstances involving domestic violence (§ 12022.7, subd. (e)). In a bifurcated proceeding, the trial court found true the allegations that defendant had four prison priors (§ 667.5, subd. (b)) and a prior conviction for attempted robbery (§§ 664, 211), a serious felony (§ 667, subd. (a)) that qualified as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
Undesignated statutory references are to the Penal Code.
Prior to sentencing, the trial court denied defendant's Romero motion and his motion to reduce his felony convictions to misdemeanor convictions. The court sentenced defendant to an aggregate term of 17 years in prison, imposed various fines and fees, and awarded him 197 days of presentence custody credit.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant filed a timely notice of appeal.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. After examining the record, counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed, i.e., November 7, 2016. On December 8, 2016, defendant filed an untimely supplemental brief, asserting that reversal is warranted because trial counsel rendered ineffective assistance of counsel. We disagree.
"An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147 (Montoya); Strickland v. Washington (1984) 466 U.S. 668, 687.)
"In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics." (Montoya, supra, 149 Cal.App.4th at p. 1147.) " ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." ' " ' " (Ibid.) " 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances.' " (Id. at pp. 1147-1148.)
"To establish prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.' " (Montoya, supra, 149 Cal.App.4th at p. 1147.)
In his supplemental brief, defendant claims that trial counsel provided inadequate representation because she failed to adequately investigate the case, call necessary and key witnesses, and present mitigating evidence at sentencing. To the extent this argument relies on matters outside the record on appeal, we cannot consider those matters. (People v. Barnett (1998) 17 Cal.4th 1044, 1183; People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 ["The scope of an appeal [based on a claim of ineffective assistance of counsel] is, of course, limited to the record of the proceedings below"].) Claims of failure to present evidence or call particular witnesses "must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for [a more favorable determination]. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation." (People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Bolin (1998) 18 Cal.4th 297, 334.) The appellate record does not include such declarations or proffers. We cannot speculate about the existence of such evidence, its availability, probative value or exonerating affect. (People v. Wash (1993) 6 Cal.4th 215, 269.) Accordingly, defendant has not established counsel was ineffective in failing to investigate, call witnesses, or present evidence.
Defendant contends that Arnold's family members could have testified that she had hit herself "for as long as they can remember," which would have explained the injuries she suffered. Defendant further contends that trial counsel failed to call a menopause specialist or subpoena Arnold's mental health records to show that she was diagnosed with PTSD and Self-Injury Disorder. According to defendant, there were witnesses, including Arnold's ex-husband, which could have testified that Arnold suffered from PTSD and Self-Injury Disorder.
On appeal, defendant submitted a declaration from Arnold. Even assuming we could consider this evidence, it fails to show ineffective assistance of counsel. The substance of Arnold's declaration is consistent with the testimony she gave at trial.
Defendant suggests that trial counsel rendered ineffective assistance by refusing to allow him to testify. The record belies this suggestion. Prior to the close of the prosecution's case, the trial court ensured that defendant knew he had the right to testify and that it was his decision whether he testified. Defendant acknowledged that he understood it was his right to testify and affirmed it was his choice not to testify.
Without elaboration, defendant contends that trial counsel rendered ineffective assistance of counsel by failing to object to the hearsay testimony of the police officers and to the medical expert's conflicting testimony. We need not address these claims or the other conclusory claims presented in defendant's supplemental brief. "The [trial] court's judgment is presumed to be correct, and it is appellant's burden to affirmatively show error. [Citation.] To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]" (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
Lack of legal counsel does not entitle an appellant to special treatment. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055-1056.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.) --------
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. (Wende, supra, 25 Cal.3d at p. 441.) We have, however, noticed several errors in the abstract of judgment which require correction. The trial court orally imposed the mandatory $40 court operations assessment (§ 1465.8) for each count, and the mandatory $30 court facilities assessment (Gov. Code, § 70373) for each count. The trial court also orally imposed two mandatory $50 lab fees (Health & Saf. Code, § 11372.5, subd. (a)) and related penalty assessments, and two $150 drug program fees (Health & Saf. Code, § 11372.7, subd. (a)) and related penalty assessments. These fees and assessments were omitted from the abstract of judgment. "Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it." (People v. Zackery (2007) 147 Cal.App.4th 380, 389.) We will order the clerk to correct the abstract of judgment to reflect the oral pronouncement of judgment.
III. DISPOSITION
The judgment is affirmed. The clerk is ordered to correct the abstract of judgment in accordance with this opinion and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
RENNER, J. We concur: /S/_________
MURRAY, Acting P. J. /S/_________
HOCH, J.