Opinion
A131107
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ROY KIES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H48971)
Appellant Daniel Roy Kies was charged by information with multiple felony counts of assault, including sexual assault, upon his spouse. On September 30, 2010, a jury convicted him of one charged felony count of inflicting corporal injury upon a spouse (§ 273.5, subd. (a)), and three lesser included offenses—two misdemeanor assault counts (§ 240), and one misdemeanor count of spousal battery (§ 243, subd. (e)(1)).
The charging information alleged that Kies had committed the following felonies (all statutory references in this opinion are to the Penal Code unless otherwise indicated): assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) on December 14, 2009 (Count 1); corporal injury to spouse resulting in traumatic condition (§ 273.5, subd. (a)), on December 14, 2009, with personal infliction of great bodily injury under circumstances involving domestic violence (§§ 12022.7, subd. (e), 1203.075) (Count 2); criminal threats (§ 422) on December 14, 2009 (Count 3); spousal rape (§ 262, subd. (a)(1)) between December 14, 2009, and December 15, 2009 (Count 4); sexual penetration by foreign object (§ 289, subd. (a)(1)) between December 14, 2009, and December 15, 2009 (Count 5); sodomy by use of force (§ 286, subd. (c)(2)) between December 14, 2009, and December 15, 2009 (Count 6); corporal injury to spouse resulting in traumatic condition (§ 273.5, subd. (a)) on December 16, 2009 (Count 7); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) on December 16, 2009 (Count 8); criminal threats (§ 422) on December 16, 2009 (Count 9); sexual penetration by foreign object (§ 289, subd. (a)(1)) between April 25, 2009, and December 16, 2009 (Count 10). The information originally charged Kies in Count 1 with attempted murder of his wife. That count was dismissed before trial and the remaining charges renumbered.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Kies was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. On January 4, 2012, Kies submitted a "supplemental brief" in narrative letter format. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
On December 8, 2011, we granted Kies's request for an extension of time to file his supplemental brief.
I. BACKGROUND
Kies met J.A. in her native Nicaragua in 2007 when she was 18 years old. They were married in Central America in November 2007. J.A. was pregnant with Kies's child at the time of the marriage. Their son was born in June 2008. They then moved to the United States, living in Hayward. At the time they moved, J.A. was pregnant with the couple's second child. Their daughter was born in the United States in June 2009.
Both Kies and J.A. testified to a tumultuous and often violent relationship over the course of the marriage, although Kies insisted that the violence and abuse was directed against him by J.A. Kies said that J.A. threatened on many occasions to lie to the police about him abusing her.
The incidents resulting in Kies's conviction occurred during the period of December 14-16, 2009. J.A. testified that Kies became angry because she used the computer without permission. He grabbed her by the hair, threw her on the sofa and pulled her hair. Kies later pulled her hair again and hit her repeatedly in the head with a closed fist "the way he would punch a man." He threatened to kill her, threw her face down and put a pillow over her head until she lost consciousness. When J.A. regained consciousness Kies was still hitting her and he banged her head against the floor.
J.A. testified with the assistance of a Spanish language interpreter. Prior to close of the prosecution's evidence, a Spanish-speaking juror (Juror #6) sent a note to the court expressing concern about J.A.'s "very poor" Spanish, and about the accuracy of portions of the translation. The juror was then separately questioned by the court and counsel. Neither party asked that Juror #6 be excused.
When Kies saw blood in J.A.'s mouth, he made her open her mouth and stuck a bar of soap in it. He then dragged her by her hair to the bedroom and told her to get on the bed. When she refused, he threw her face down on the bed. Given the offenses for which Kies was convicted, it is unnecessary for us to recite in detail the sexual assault allegations. J.A. testified that Kies forced her to engage in both vaginal and anal intercourse, and used his fingers and a vibrator to penetrate her anally.
On December 16, 2009, Kies became angry after accusing J.A. of cutting their son's hair, and once again started hitting her in the head, twisting his ring behind both of her ears. A neighbor and friend of J.A.'s, Nora Rivera, heard screaming and crying from Kies's apartment and called police. Hayward Police Officer Troy Corriere testified that on December 16, 2009, he arrived at Kies's apartment in response to a domestic disturbance report. Kies was sitting on the living room couch using a laptop computer and appeared relaxed and calm. Corriere found J.A. sitting on the floor in the kitchen with both of her children, with her knees drawn up. All three were crying and upset. He noticed swelling and blood on J.A.'s lower lip. Corriere had pictures taken of J.A.'s injuries and the items in the apartment that he believed relevant to the investigation. Among the items photographed was a bar of soap that appeared to bear human teeth marks. Kies was placed under arrest.
Dana Kelly, a physician's assistant sexual assault examiner at the Alameda Medical Center examined J.A. on December 16, 2009. Kelly observed tenderness on top of J.A.'s scalp, redness and swelling behind her ears, top and bottom lip abrasions, an abrasion on top of her left ear and a bump on the back of the head. J.A. told Kelly she had been punched like a man and had been choked into unconsciousness. Kelly's report reflected no assault related findings in the anus or rectum. The results of her examination were, however, consistent with the history provided to her by J.A.
The prosecution also introduced several videos clips found on Kies's computer as alleged adoptive admissions. In the video segments (which are not part of the record before us), J.A. apparently accuses Kies of verbally and physically assaulting her, and the prosecutor argued that Kies failure to deny these allegations, and the demeanor of both Kies and J.A., demonstrated the abusive nature of the relationship.
Most of the conversation between Kies and J.A. on the videos was in Spanish, and translation transcripts were provided to the jury. Counsel stipulated that the translations were accurate. Defense counsel also introduced one of the video clips and played it for the jury.
Kies testified in his own defense. He was in custody, and a bailiff was seated near him during his testimony, over defense counsel's objections. At defense counsel's request, the jury was admonished that the bailiff's presence was routine and that they should draw no adverse inference from it.
Kies denied any assaultive conduct or abusive behavior against J.A., and denied any forced sex. He said that he had taken the videos of J.A. to capture her telling lies and to later present them to a psychologist or psychiatrist because J.A. was "pretty crazy." As previously noted, Kies insisted that any violence and abuse had been directed against him by J.A. He said that she had threatened on many occasions to lie to the police about him abusing her.
On September 30, 2009, the jury returned verdicts finding Kies guilty of corporal injury to a spouse resulting in a traumatic condition (§ 273.5, subd. (a)), a felony (Count 7), two counts of simple assault (§ 240), misdemeanors as a lesser included offenses of Counts 1 and 8, and battery against a spouse (§ 243, subd. (e)(1)), a misdemeanor as a lesser included offense of Count 2. The jury was unable to reach a verdict on the charge of sexual penetration by foreign object (Count 5). Kies was found not guilty of the other charged offenses.
On October 29, 2010, Kies was referred to the Department of Corrections and Rehabilitation for a diagnostic evaluation under section 1203.03. Following receipt of the diagnostic report, the court imposed the lower term of two years on the felony conviction of corporal injury to spouse resulting in a traumatic condition. Kies was sentenced to a term of 90 days on each of the misdemeanor convictions, concurrent to the felony term. He received presentence custody credit of 810 days. Kies was ordered to pay restitution and parole restitution fines of $200 each (§§ 1202.4, subd. (b), 1202.45), a court security fee of $160 (§ 1465.8), a criminal conviction assessment of $120 (Gov. Code, § 70373), and a probation investigation fee of $200 (§ 1203.1b).
Kies served 405 days in actual custody, and received credit under section 4019 for an additional 405 days. On the basis of the presentence custody credits, the court found that Kies had served his prison term.
A notice of appeal was timely filed.
II. DISCUSSION
Kies, in his pro se filing, alleges ineffective assistance of counsel, prosecutorial misconduct, and "contamination of the jury." He argues that his retained counsel failed to adequately investigate his case and presented an "incompetent defense," and that the prosecution presented "knowingly false arguments and manufactured evidence" in his case. Additionally, the jury was "contaminated," he contends, by the "horrendous and dire" cries of a female prisoner in a nearby holding cell that were allegedly audible in the courtroom for a prolonged period (20-30 minutes) during his trial.
Kies makes no citation to any portion of the trial court record, and cites no legal authority for any of his arguments. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793.) We have nevertheless reviewed the record. The majority of Kies's claims, particularly with respect to alleged ineffective assistance of counsel, are based on matters clearly outside of the record before us. Instead, he chronicles his disagreements with the trial strategy employed by his counsel, seeks to reargue the weight and credibility of the evidence, and presents what he himself refers to (quite accurately) as his "captious diatribe against my attorneys and prosecutors."
First, we consider only matters which are part of the trial court record in reviewing the judgment. (See People v. Pearson (1969) 70 Cal.2d 218, 221; People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 [an appellate court's review is limited to consideration of the matters contained in the appellate record].) Second, we do not reweigh the evidence as Kies would clearly have us do. In determining whether there is sufficient evidence to support a court's findings, we review the entire record in the light most favorable to the prosecution to see if any rational trier of fact could have been so persuaded. (People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) It is the exclusive province of the trier of fact to determine the credibility of a witness and to resolve evidentiary inconsistencies, and we must defer to the factfinder's credibility resolutions. (People v. Young (2005) 34 Cal.4th 1149, 1181.) " 'It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) "To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear [citations]." (People v. Ozene (1972) 27 Cal.App.3d 905, 910.) When differing "inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court[, and] . . . it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.) This was a case dependent largely on the jurors' assessment of the relative credibility of Kies and J.A. The verdicts reflect that the jury found J.A.'s testimony credible, at least in part, and particularly where corroborated by other witnesses and physical evidence. They apparently found Kies's testimony less persuasive.
Kies fails to raise any arguable issue as to the competence of his trial counsel. He first outlines what he views as preferable defense strategies, and insists that counsel should have focused on presenting alternative scenarios to the jury on how his wife's wounds occurred. He opines that a strategy focused primarily on impeachment of the victim had "no chance of success" and was therefore "incompetent." He also complains that his attorneys were ineffective in failing to recall his wife for further cross-examination regarding the computer video clips presented, and that counsel failed to ensure that the translated transcripts of the dialogue would "synch up" with the Spanish screen dialogue, confusing the jury.
The record does not support this last contention. We note that counsel stipulated that the translations were accurate. Both prosecution and defense also followed the practice of first showing the video clips without the transcripts "so the jury can listen to the tone of the voices and watch the facial expressions" and then playing them a second time, assisted by the transcripts.
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Generally we do not reach claims of ineffective assistance of counsel on direct appeal. (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31; People v. Pope (1979) 23 Cal.3d 412, 426.) To establish a claim of incompetence of counsel, a defendant must establish both that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-218 (Ledesma).) In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny. (E.g., Strickland, supra, 466 U.S. at p. 689.) "A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. . . . If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
As our Supreme Court has recognized, "the means of providing effective assistance are many and . . . as a consequence counsel has wide discretion in choosing which to use." (Ledesma, supra, 43 Cal.3d at p. 216.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
Further, prejudice must generally be affirmatively proved. (Strickland, supra, 466 U.S. at p. 693.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [¶] . . . [¶] . . . The 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at pp. 693-694; Ledesma, supra, 43 Cal.3d at p. 218.) A review of the record fails to sustain Kies's burden on either prong.
Kies's claim of prosecutorial misconduct is premised on his assertion that the prosecution used "false arguments and manufactured evidence." He objects that the prosecution introduced a photograph of a couple engaged in a sexual act, falsely claiming that it depicted Kies and his wife. He complains that the prosecutor falsely represented a "date stamp" on certain photographs taken from his computer, although admitting that he was allowed to contest that evidence in his own trial testimony. Finally, he insists that the prosecutor misrepresented "the possession and chain of custody" of his computer, and that video evidence taken from the computer was manipulated and/or deleted.
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' " (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29.) Kies fails to point to evidence, as opposed to argument, to raise an arguable issue on either point.
As to his claim that the jury was "contaminated" by the cries of a female prisoner during his trial, there is nothing in the record that would support Kies's characterization of either the nature or duration of any disruption—nor his speculation that there was a prejudicial effect on the jury. It appears that the court declared a brief recess at one point during the prosecutor's rebuttal argument. The clerk's minutes note that the 10 minute recess was "taken to address noisy and distracting inmate in adjoining cell," and the reporter's transcript reflects the court's statement, "You folks can go back into the back and see if we can find out if there's any possibility of moving this lady to another part of the building." Apparently the problem was then resolved, and there was no request by defense counsel for any admonition to the jury or other corrective action. Nothing in the record before us raises any arguable issue.
Our review of the record reveals no other arguable issues. The jury was properly instructed as to the elements of the charged offenses, and as to the lesser included offenses. No prejudice is shown by virtue of the court's courtroom security precautions during Kies's testimony. "[S]tationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice that must be justified by a showing of manifest need." (People v. Stevens (2009) 47 Cal.4th 625, 629.) Further, the jury was appropriately admonished to draw no adverse inference from it and no actual prejudice is shown. Kies received appropriate custody credits, and fines, fees and penalties were properly imposed.
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J. We concur: Jones, P. J. Simons, J.