Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF009821. Beauford H. Phelps, Judge. (Retired judge of the L.A. Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Beauford H. Phelps, Judge. (Retired judge of the L.A. Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Charles R. Khoury, Jr., under appointment by the Court of Appeal, and Peter B. Clarke for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey Koch and Steve Oetting, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant and appellant Scott Edward MacIver (hereafter defendant) guilty as charged of making a criminal threat in violation of Penal Code section 422 (count 1); inflicting a corporal injury and causing a traumatic condition (commonly referred to, and referred to hereafter, as domestic violence) in violation of section 273.5 (count 2); assault with a deadly weapon, specifically a knife, in violation of section 245, subdivision (a)(1) (count 3); and false imprisonment by violence and menace in violation of section 236 (count 4). The jury also returned true findings on the special allegations in connection with counts 1 and 2 that, in committing the charged crimes, defendant used a knife, a deadly and dangerous weapon within the meaning of section 12022, subdivision (b). The trial court sentenced defendant to serve a total term of four years in state prison comprised of the middle term of three years imposed on count 2 (the principal term), plus an additional year for the section 12022 enhancement.
All further statutory references are to the Penal Code unless indicated otherwise.
The trial court also imposed sentences on the remaining counts but ordered defendant to serve those sentences concurrently to the sentence imposed on count 2.
Defendant raises numerous claims of error in his appeal from the judgment. In a petition for writ of habeas corpus, that we consolidated with the appeal for the purpose of determining whether to issue an order to show cause, defendant alleges he was denied the effective assistance of counsel. With the exception of his claim of sentencing error, we conclude defendant’s claims on appeal are meritless. We also conclude that his habeas corpus petition does not allege a prima facie basis for relief. Therefore, we will modify the judgment by staying execution of the sentences imposed on counts 1, 3, and 4, and will affirm as modified. We will deny the habeas corpus petition.
FACTS
The pertinent facts are not in dispute. The only issue at trial was whether the victim, Mary Mongeon, was telling the truth when, in the morning on November 14, 2004, she told her daughter and then reported to a deputy sheriff that defendant had “terrorize[d]” her all night by holding a knife to her throat and threatening to kill her if she left him, or whether she was telling the truth at trial when she testified that she had lied to her daughter and the deputy and, in fact, defendant had not touched her on the night in question. In her trial testimony, Ms. Mongeon acknowledged that she and defendant had an argument at the Cahuilla Creek Casino after she spotted defendant talking with one of his former girlfriends. Ms. Mongeon testified that she had been drinking heavily both at the casino and then later when she and defendant returned home. As a result, she pushed the issue with defendant, but he repeatedly asked her to just “leave it alone.” Ms. Mongeon continued to yell at defendant even after they returned to their home around 2:00 a.m. In her anger, Ms. Mongeon threw things at defendant, including a vase and a picture frame. Ms. Mongeon testified that she wasn’t going to leave it alone because “that’s what I do when I drink,” so she followed defendant to the bedroom and told him to give her some money so she could leave. Defendant emptied his pockets and threw the contents, which included his wallet, at Ms. Mongeon; she took defendant’s money. Ms. Mongeon went back to the casino where she spent defendant’s money “just to make him more upset and piss him off.” About 5:30 a.m., Ms. Mongeon got a ride home from a friend. She went inside and woke up defendant by kicking the bed, to which defendant responded, “Just get the Fout.”
Defendant was Ms. Mongeon’s boyfriend at the time she made the police report but by the time of trial, defendant and Ms. Mongeon were engaged.
The friend, Jennifer Gonzalez, who was the only defense witness, testified that she spotted Ms. Mongeon stumbling down the road from the casino and gave her a ride home around 2:30 a.m.
Ms. Mongeon testified that she left the house and was walking to town, when defendant pulled up in his truck and asked, “‘Are you done now, Mary? Get in, let’s go have breakfast.’” Ms. Mongeon got in the truck and she and defendant were driving toward town when her daughter, Christina Geiger, phoned. After Christina asked her mother whether something was wrong, Ms. Mongeon asked defendant to stop the truck to let her out. According to Ms. Mongeon, “I just wanted out of the truck, and because I – what the incident is, is I wanted out of the truck. I didn’t want my kids to know that I had been up all night long. And I was under the influence, and it was just, like, all chaos was gonna break loose soon, because my kids were coming up to pick me up[.]” Defendant stopped the truck and let her out on the side of the road. Ms. Mongeon was still talking on the phone with her daughter, and when Christina asked where she was, Ms. Mongeon told her, and then added that she was walking and would meet Christina at the Circle-K.
Although Ms. Mongeon could not remember saying anything that would “provoke” Christina to call the police, Christina called the police. When the prosecutor asked why Christina would do that, Ms. Mongeon explained that Christina “was not familiar with the defendant, and she just heard the rattling and the nervousness in my voice.” According to Ms. Mongeon, Christina “always was calling the police, even with my marriage to my ex-husband.” Ms. Mongeon also testified that she told Christina, “We don’t need no police. There’s no reason to call the police.” When the prosecutor reminded her that she had testified that the only conversation she had on the phone with Christina was to tell her that she was walking to Circle-K, Ms. Mongeon explained that Christina had called her back while she was walking. Ms. Mongeon also acknowledged that she had spoken with Deputy Cloutier about the argument she had with defendant but she could not remember what she had told him. After reviewing a copy of the deputy’s report, Ms. Mongeon testified, “You know, I really don’t remember saying all that crazy stuff in that. I mean, I’m sure I did, because he wrote it down. But that is, like, really out there.” The prosecutor then asked about each statement contained in the report, and after each question Ms. Mongeon responded that she did not recall making the statement.
In all, Ms. Mongeon did not recall telling Deputy Cloutier that she “had been terrorized all night” by defendant; that defendant had held the blade of a pocket knife to her neck; that defendant had jabbed her chest several times with two fingers and with each jab said he would kill her if she left; that she had never seen defendant this angry and that he was out of his mind; that defendant had picked her up by her hair and slammed her head into the wall several times; that while holding the pocket knife to her neck, defendant had said she was going to die tonight; that defendant twisted the front of her sweatshirt so tight she was unable to breathe; that she thought defendant was going to kill her; that defendant drove his truck erratically and at very high speeds, while he continued his verbal assault on her; that defendant threatened to drive over a cliff and kill them both; that after she got out of the truck, defendant said she had five seconds to get back in or he would run her over; that she was crying and shaking while talking with the deputy; that she had a bump on her head, and was complaining of pain; and that she had redness on her chest and a scratch on the back of her neck. Ms. Mongeon also did not recall saying to her daughter after she learned that Christina had called the police, “‘You don’t know what he’s capable of.’”
When cross-examined, Ms. Mongeon stated that she is supposed to take medication to control her moods but that she had been off it on the night in question. When she is not taking the medication she has mood swings and is “combative.” Ms. Mongeon also stated that she had taken methamphetamine with a friend when she went back to the casino, after leaving defendant at home, and that the drug “winds me up more than I normally am without my medication.” In short, Ms. Mongeon claimed that she was under the influence of alcohol and methamphetamine on the night in question, and as a result accused defendant of things he had not done. Ms. Mongeon also confirmed that her inability to recall what she said to her daughter and the sheriff’s deputy was also a by-product of being under the influence of drugs and alcohol.
Ms. Mongeon explained that she is “bipolar or something like that.”
Deputy Cloutier and Christina Geiger both testified at trial and recounted the details of what Ms. Mongeon had told them on November 14. Deputy Cloutier stated, in pertinent part, that he had taken a report from Ms. Mongeon regarding an altercation she had with defendant and that when he spoke with her at the Circle-K, Ms. Mongeon was “terribly upset, frightened, shaking, nervous, traumatized.” The deputy then confirmed that Ms. Mongeon had made each of the statements he attributed to her in his report and had suffered each of the described injuries. The deputy also authenticated two photographs he had taken of Ms. Mongeon, one of her chest and the other of the back of her neck. As set out in Deputy Cloutier’s report, Ms. Mongeon said that she and defendant were arguing about his conversation at the casino with his former girlfriend. When they got home, Ms. Mongeon told defendant that she was leaving him. Defendant “became enraged,” held the pocket knife to her neck and threatened to kill her. While he held the knife to her neck, defendant also twisted the front of her sweatshirt so tight that Ms. Mongeon had to gasp for air. According to Deputy Cloutier, Ms. Mongeon stated that she feared for her life and believed that defendant intended to kill her. Ms. Mongeon also reported to the deputy that she cowered in the corner of the bedroom for several hours until defendant told her she had five seconds to leave the house or he would kill her. Ms. Mongeon told the deputy that she left the house and was walking up the road when defendant pulled up in his pickup truck and came to a screeching halt in front her, blocking her path. Defendant told her to get in the truck or he would run her over. After she got in the truck, defendant drove erratically and at high rates of speed while threatening first to kill them both by driving off a cliff, and then to kill her.
Christina Geiger testified, in pertinent part, that she called her mother in the morning on November 14, 2004, and when she answered, her mother “sounded very distraught and distressed, sounded like she was crying.” When Ms. Geiger asked if anything was wrong, her mother said that defendant had her in his truck “out on a dirt road,” was driving very erratically, and would not let her out of the truck. Ms. Geiger testified that her mother said defendant had hit her. Ms. Geiger heard her mother ask defendant to let her out of the truck, then she “heard the sound of tires peal out on dirt or com[e] to a sudden stop on dirt, then heard her get out, or I heard the door shut.” Once she was out of the truck, her mother told Ms. Geiger what had happened the night before. Her mother also said that if defendant came back, he might run her over, so she was going to hide behind a bush. According to Christina Geiger, her mother said that defendant had held a knife to her neck the night before and said that her mother had 10 seconds to make her peace with God. Defendant also had backed her mother into a corner in the house and slammed her head against the wall. While driving in the truck, defendant said that he was going to find a cliff and drive off it.
Because she feared for her mother’s safety, Christina Geiger called 911. When Ms. Geiger got to the Circle-K, her mother was shaking and crying and having a difficult time speaking. Ms. Geiger testified that her mother had an injury on the back of her neck that resulted from defendant twisting the neck of her sweatshirt. Her mother also had redness on her chest that defendant had caused by repeatedly poking her with his finger, and a bump on the back of her head. Ms. Geiger testified that her mother showed her the pocket knife that defendant had held to her neck. Her mother said that after defendant held it to her neck, he handed her the knife and said, “‘Consider this your saving grace.’”
Additional evidence pertinent to the issues defendant raises on appeal will be recounted below.
DISCUSSION
We first address defendant’s various claims of instructional error.
1.
JURY INSTRUCTIONS
A. Lesser Included Offense Instructions
(1) Attempt to Make a Criminal Threat
Defendant first contends that the trial court had a sua sponte duty to instruct the jury on an attempt to make a criminal threat as a lesser necessarily included offense of the crime of making a criminal threat (§ 422) charged in count 1. The pertinent legal principles are well settled. “In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1085, citing People v. Breverman (1998) 19 Cal.4th 142, 154.)
In order to find defendant guilty of the crime of making a criminal threat in violation of section 422, the evidence had to show, among other things, that defendant willfully threatened “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . .” (§ 422.) The crime of an attempt to commit a criminal threat is committed when for example a defendant makes the requisite threat but the threatened person either does not understand the threat or “the threat does not actually cause the threatened person to be in sustained fear for his or her safety.” (People v. Toledo (2001) 26 Cal.4th 221, 231.)
According to defendant, the testimony of Mary Mongeon supports instructing the jury sua sponte on the crime of an attempt to commit a criminal threat because she testified that as a result of being drunk she did not recall whether defendant had threatened her and, in any event, because she was “anaesthetized by alcohol and drugs” at the time, the jury could have had a reasonable doubt whether Ms. Mongeon was in sustained fear as a result of any threat. We do not share defendant’s view of the evidence.
Ms. Mongeon did not testify, and there was no evidence to suggest, that defendant threatened to kill her but that she was too intoxicated to appreciate the threat and therefore was not in sustained fear. As recounted above, Mary Mongeon testified at trial that defendant did not hit her or threaten to kill her, and that she did not recall making contrary statements to her daughter or to the deputy sheriff. Deputy Cloutier and Christina Geiger each testified that Ms. Mongeon told them that defendant had threatened to kill her, had held a knife to her throat, had banged her head against the wall in the house, and had terrorized her for several hours before allowing her to leave. In short and simply put there was no evidence presented at trial to show that defendant threatened to harm Mary Mongeon but because she was drunk and under the influence of methamphetamine, Ms. Mongeon was not in fear for her safety as a result of the threat. Because there was no evidence to support it, the trial court was not required to instruct the jury sua sponte on the crime of an attempt to make a criminal threat as a lesser included offense to the crime of making a criminal threat charged in count 1.
(2) Misdemeanor Battery
Defendant contends that the trial court should have instructed the jury on misdemeanor battery against a cohabitant as a lesser included offense to the crime of domestic violence in violation of section 273.5 charged in count 2. Battery against a cohabitant in violation of section 243, subdivision (e)(1), is a lesser necessarily included offense to the charged crime of domestic violence. (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) The difference between the two offenses is that section 273.5 requires that the battery, or physical force, result in a “traumatic condition,” which is defined in section 273.5, subdivision (c) as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature.”
Both Deputy Cloutier and Christina Geiger testified that Mary Mongeon suffered injuries as a result of defendant’s application of physical force. According to Ms. Geiger, her mother had bruises on her chest from defendant repeatedly poking her with his finger, a red mark at the back of her neck from defendant twisting the neck of her sweatshirt, and a bump on her head from defendant slamming her into a wall. Defendant points out that, at least in the trial court’s view, Ms. Mongeon’s injuries were not visible in the photographs Deputy Cloutier took of her on November 14, 2004. Therefore, defendant argues that the evidence does not establish the requisite traumatic injury. As defendant puts it, “[T]he pictures tell all.”
Defendant is wrong. His argument ignores the testimony of Deputy Cloutier and Ms. Geiger, both of whom testified to the injuries defendant inflicted on Ms. Mongeon. Because the evidence shows Ms. Mongeon suffered injuries as a result of defendant’s application of physical force, the evidence did not warrant instructing the jury on misdemeanor battery on a cohabitant as a lesser included offense to the crime of domestic violence charged in count 2.
B. Unanimity Instruction
Defendant contends that the trial court should have given a unanimity instruction sua sponte because there was evidence that defendant made more than one criminal threat (count 1), committed more than one act of inflicting corporal injury on a cohabitant (count 2), and committed more than one act of false imprisonment (count 4). Therefore the trial court should have instructed the jury that in order to find defendant guilty on those charges, the jury had to agree unanimously on the act that constituted the crime.
We reiterated the pertinent legal principles in People v. Wolfe (2003) 114 Cal.App.4th 177: “‘In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]’ [Citation.]” (Id. at pp. 183-184, quoting People v. Russo (2001) 25 Cal.4th 1124, 1132.) However, a “unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) We also held in People v. Wolfe that failure to give a unanimity instruction requires reversal unless the error is harmless beyond a reasonable doubt. (People v. Wolfe, supra, 114 Cal.App.4th at pp. 185-188.)
With respect to the crimes of making a criminal threat charged in count 1, and domestic violence charged in count 2, if a unanimity instruction were required, any error in failing to give the instruction necessarily was harmless beyond a reasonable doubt. As previously noted, the jury made true findings on the special enhancements under section 12022, subdivision (b), alleged in connection with both count 1 and count 2 that in committing the crimes charged, defendant used a knife. From those true findings we know that the jury based its guilty verdicts on those two counts on defendant’s act of threatening to use a knife on Mary Mongeon (count 1), and injuring her with that knife (count 2). In other words, to return the true findings the jurors all had to agree on the act that comprised the criminal threat in count 1 and the domestic violence in count 2. Therefore, if the trial court erred in failing to give the jury a unanimity instruction, that error was harmless beyond a reasonable doubt with respect to defendant’s conviction on count 1 for making a criminal threat in violation of section 422, and on count 2, for domestic violence in violation of section 273.5.
Similarly, any error in failing to give a unanimity instruction in connection with count 4, the false imprisonment charge, also was harmless beyond a reasonable doubt. Assuming, as defendant contends, that the evidence establishes two separate acts of false imprisonment, one at the house when defendant threatened to kill Ms. Mongeon if she left, and another when he forced her to get in his truck by threatening to run her over, defendant did not give the jurors any reason to distinguish between these two acts, and thereby believe that one but not the other occurred, because he asserted only one defense at trial -- that Mary Mongeon lied to her daughter and Deputy Cloutier, and in truth defendant did not commit any of the acts Ms. Mongeon attributed to him. The jury obviously rejected that defense as evidenced by the jury’s guilty verdicts. Accordingly, if a unanimity instruction were required in this case, any error in failing to give that instruction was harmless beyond a reasonable doubt. (People v. Wolfe, supra, 114 Cal.App.4th at pp. 185-188.)
2.
SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to prove that he inflicted a corporal injury resulting in a traumatic condition on Mary Mongeon and thereby violated section 273.5 as charged in count 2. In asserting this claim defendant acknowledges that Christina Geiger testified in pertinent part that her mother’s chest was bruised as a result of defendant poking her with his finger. Defendant also concedes, as he must, that bruising constitutes a traumatic condition. However, defendant contends because Deputy Cloutier’s photographs of Ms. Mongeon do not show the bruises, that Ms. Geiger’s testimony is not substantiated and therefore is insufficient to support the jury’s verdict finding defendant guilty of inflicting a corporal injury resulting in a traumatic condition. Defendant is wrong in his view that Ms. Geiger’s testimony is insufficient evidence of the requisite injury.
“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.) Substantial evidence is “evidence which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Testimony of a single witness is sufficient to support a jury’s verdict “unless the testimony is physically impossible or inherently improbable.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The testimony of Christina Geiger is neither physically impossible nor inherently improbable and therefore is sufficient to prove that defendant inflicted a corporal injury on Mary Mongeon, defendant’s contrary assertion notwithstanding. Accordingly, we reject defendant’s challenge to the sufficiency of the evidence to support his conviction for violating section 273.5, as charged in count 2.
3.
EVIDENCE OF PRIOR ACTS OF DOMESTIC VIOLENCE
The trial court granted the prosecutor’s pretrial motion to admit evidence of prior uncharged acts of domestic violence committed by defendant. Defense counsel did not file opposition to the prosecutor’s motion, and at the hearing stated that he had no objection to the evidence. Consequently, the jury heard testimony from defendant’s former wife, Tamara Loomis, that after she and defendant had been married for about six months, he started to call her a bitch and a whore. About a year after they were married, Ms. Loomis woke up in the middle of the night because she had pain in her leg. When she turned on the light, she saw defendant standing next to her holding an electric alarm clock by the cord. Defendant was throwing the alarm clock at her and hitting her in the leg and shoulder. When she started to scream and yell, defendant jumped on top of her, and tried to smother her by putting one hand over her mouth and nose and the other on her neck.
In his habeas corpus petition, defendant cites counsel’s action as one of the ways in which defendant was denied the effective assistance of counsel.
In another incident on July 4, 2002, Ms. Loomis and defendant had been at a casino with her eight-year-old and 12-year-old sons. The boys had wandered off and Ms. Loomis asked defendant to help her look for them. Defendant initially got mad and said that they were her kids and “he shouldn’t have to go look for them, he shouldn’t have to worry about them.” Loomis found the boys while defendant was still off looking for them, and when he “finally came back[] he was mad because he had missed the fireworks.” On the way home, defendant “drove very erratically, cutting people off.” At the road to their driveway, defendant pulled the car over, got out, walked to the back of the car and grabbed her oldest son by “the back of his hair” and started to “drag him out of the car.” Defendant stopped and apologized when neighbors came out of their house to see what was going on. Once they were home, defendant became argumentative and grabbed Loomis’s arm and shoved her. Ms. Loomis called her father who came over and talked to defendant to calm him down.
In another incident, defendant became angry with Ms. Loomis after she told him she had not had time to call his doctor about a medication defendant was taking. Ms. Loomis believed the medication in question was Prozac but did not remember for certain because defendant “had been on several different types of medication.” According to Ms. Loomis, defendant leaned over and whispered in her ear, “‘Well, it’s not going to be my fault when I kill you tonight. I’m on Prozac and it’s not going to matter.’” Ms. Loomis testified that she was frightened and grabbed the phone to call for help but defendant grabbed it out of her hand. Ms. Loomis was able later to call her mother and her mother called the police. Ultimately Ms. Loomis sought and obtained a restraining order to keep defendant away from her and her children.
Ms. Loomis also testified that she had a conversation with Mary Mongeon two or three months before trial at the Cahuilla Creek Casino in which Ms. Mongeon asked what defendant had done to Ms. Loomis during their relationship. After Ms. Loomis gave her a detailed account, Ms. Mongeon stated that defendant had already beat her three times and that he had held her captive in his truck.
Finally, Christina Geiger testified that in September 2004 she had a telephone conversation with her mother who said that defendant had thrown her against a bookcase and that she had a cut on her back. The next day, Mary Mongeon showed Ms. Geiger the cut, confirmed that the incident had occurred, but said it was her fault and that she had been drunk.
In challenging the admissibility of the above noted evidence, defendant contends that the trial court did not weigh the probative value of the challenged evidence against its potential for undue prejudice, as required by Evidence Code sections 1109 and 352. As noted previously, defendant told the trial court that he did not have any objection to the noted evidence. In doing so, defendant effectively invited the trial court to commit the error about which he now purports to complain. The rule is well established that “[i]f defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.” (People v. Wickersham (1982) 32 Cal.3d 307, 330; see also People v. Marshall (1990) 50 Cal.3d 907, 931.) Accordingly, because he did not object we must reject defendant’s Evidence Code section 352 claim.
Defendant did assert a relevance objection when Loomis testified that defendant pulled her son from the car by his hair. However, after a sidebar conference, defense counsel withdrew that objection, an action defendant also cites in his habeas corpus petition.
Defendant also contends that the trial court had a sua sponte duty to instruct the jury according to CALJIC Nos. 2.50.1 and 2.50.2, which, respectively, advise the jury that the prosecution has the burden to prove by a preponderance of the evidence that defendant committed the prior uncharged acts of domestic violence, and define preponderance of the evidence. Defendant does not cite any authority to support his assertion that the instructions must be given sua sponte. We construe his omission as a concession that no such obligation exists.
But even if the trial court had such an obligation, failure to give the noted instructions was harmless because the trial court instructed the jury according to CALJIC No. 2.50.02 that the jurors could consider evidence that defendant committed other acts of domestic violence to infer that defendant has a disposition to commit such acts, and if the jury found by a preponderance of the evidence that defendant committed the prior acts of domestic violence, that evidence is not enough by itself to prove defendant’s guilt on the current charges beyond a reasonable doubt. Thus, the trial court did advise the jury that the prior acts of domestic violence must be proved by a preponderance of the evidence. Although the trial court did not define preponderance of the evidence for the jury, it is not reasonably probable the jury would have reached results more favorable to defendant on any of the charges if they had been given that definition. (People v. Watson (1956) 46 Cal.2d 818, 836.)
4.
SENTENCING
Defendant contends that the crimes in this case were all committed during an indivisible course of criminal conduct and therefore the trial court should have stayed the concurrent sentences imposed on counts 1, 3, and 4 under section 654. The Attorney General in turn concedes that section 654 is applicable to counts 1 and 3 but contends that count 4, defendant’s conviction for false imprisonment, is a separate criminal act because it occurred in defendant’s truck. In our view, the trial court should have stayed execution of defendant’s sentence on all three counts.
Section 654 prohibits multiple punishments for multiple offenses that arise from the same act or criminal enterprise. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one criminal act during a criminal enterprise the question is whether the course of criminal conduct is divisible and “therefore gives rise to more than one act within the meaning of section 654.” (Neal v. State of California, supra, at p. 19.) Resolution of that question, in turn, “depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.)
As the Attorney General correctly points out, the crimes of making a criminal threat (count 1), domestic violence (count 2), and assault with a deadly weapon, namely a knife (count 3), were all based on defendant’s single criminal act of holding a knife to Mary Mongeon’s neck, as evidenced by the jury’s true findings on the allegations under section 12022, subdivision (b) that in committing the crimes alleged in count 1 and count 2 defendant used a knife. The trial court selected count 2 as the principal term, and should have stayed the sentences imposed on counts 1 and 3 under section 654 because all three convictions are based on a single criminal act.
In arguing that count 4, defendant’s conviction for false imprisonment, involves a separate criminal act the Attorney General focuses on defendant’s act of holding Ms. Mongeon captive in his truck. As the Attorney General acknowledges, the jury could also have based the false imprisonment conviction on defendant’s act of holding Ms. Mongeon captive in the house. In our view, both acts were part of a continuous course of criminal conduct that began in the house and culminated with defendant letting Ms. Mongeon out of the truck, all of which defendant undertook in order to prevent Ms. Mongeon from leaving him. Accordingly, we conclude that the trial court should also have stayed execution of the sentence imposed on count 4, and we will modify the judgment accordingly.
As his final claim on appeal, defendant contends that the cumulative effect of the errors in this case requires reversal of the judgment. Because we conclude there either was no error or if error occurred it was harmless, we must reject this final assertion.
5.
HABEAS CORPUS PETITION
In his petition for writ of habeas corpus defendant alleges that he was denied the effective assistance of counsel because his trial attorney did not (1) investigate information defendant provided that showed Ms. Mongeon once had falsely accused her former husband of beating her; (2) object to the admissibility of defendant’s prior acts of domestic violence; (3) excuse a prospective juror who expressed doubt about her ability to serve because 20 years ago her brother-in-law had been murdered; and (4) file a notice of appeal.
The legal principles that govern our review of these allegations are well settled. First, “[w]e presume the regularity of proceedings that resulted in a final judgment [citation],” and place the burden on defendant to plead sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) We will only issue an order to show cause if the factual allegations of the petition, taken as true, establish a prima facie case for relief. (Id. at p. 475.) To establish a prima facie claim for relief based on ineffective assistance of counsel, defendant must allege facts in his habeas corpus petition that “demonstrate (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.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) “In evaluating defendant’s showing we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel to “defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .”’ [Citations.]” (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.)
In his petition, as previously noted, defendant alleges first that he provided trial counsel with information to show that Mary Mongeon had once falsely accused her former husband of beating her. To support that allegation defendant cites an exchange between the prosecutor, the trial judge, and defense counsel that occurred after the jury was selected but just before the prosecutor gave her opening statement. That exchange suggests that Ms. Mongeon had only just then provided defense counsel with the pertinent information. To refute that suggestion, appellate counsel submits his own declaration in which he recounts statements Ms. Mongeon made to him. The Attorney General objects to those statements as hearsay and also notes that a declaration from Mary Mongeon, while also hearsay, nevertheless should be reasonably available since she now is defendant’s wife.
Defendant describes the information as a declaration in support of a temporary restraining order obtained against Ms. Mongeon by her former husband. The document is included as Exhibit B in defendant’s Exhibits to Petition for Writ of Habeas Corpus, and appears to be a declaration, however neither its purpose nor its authenticity is established.
The objection is well taken. And like the Attorney General, we question why defendant did not support his claim with a declaration from Mary Mongeon. (See People v. Duvall, supra, 9 Cal.4th at p. 474 [A habeas petition “should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits and declarations”].) Appellate counsel also states in his declaration that he spoke with Scott Mongeon, the former husband of Mary Mongeon, but rather than submit a declaration from him, appellate counsel also purports to relate Mr. Mongeon’s statements. Defendant has not provided “reasonably available documentary evidence” to support his allegation that he timely provided his trial attorney with information that would have supported his defense. Consequently, we may reject out of hand his initial allegation of deficient performance by trial counsel.
Moreover even if adequately alleged and sufficiently supported by appropriate evidence, defendant’s first allegation nevertheless is insufficient because defendant has not demonstrated that it is reasonably probable the jury would have reached a different result in this matter if trial counsel had presented evidence to show that Mary Mongeon had made a false claim of abuse against her former husband. As recounted in detail above, Ms. Mongeon testified at trial that she lied and had made up the charge against defendant because she was drunk and under the influence of drugs. The jury did not believe her testimony and instead believed the testimony of her daughter and Deputy Cloutier, as evidenced by the jury’s guilty verdicts. Defendant speculates that it is reasonably probable the jury would have believed his defense if Scott Mongeon had testified at trial, and the jury had heard that Ms. Mongeon had falsely accused him of beating her up. We do not share defendant’s confidence. Given the testimony of Ms. Geiger and Deputy Cloutier regarding Mary Mongeon’s statements to them and that Mary Mongeon had injuries that were consistent with her claim in this case, it is not reasonably probable the jury would have believed that Ms. Mongeon made up the claim against defendant and therefore would have reached a result more favorable to defendant if they had heard evidence that Ms. Mongeon had once falsely accused her former husband of beating her up.
Defendant asserts those injuries “were almost invisible” because they did not appear clearly in the photographs Deputy Cloutier took of Ms. Mongeon. However, both Ms. Geiger and Deputy Cloutier testified that the injuries were visible and Ms. Geiger added that the bruising on her mother’s chest became apparent, as bruises do, several days later.
Defendant’s second allegation, that defense counsel was ineffective because he did not object to the admissibility of the evidence regarding prior uncharged acts of domestic violence by defendant, is equally unavailing. Although defendant’s allegation is broad, he only addresses the evidence that defendant pulled his former wife’s 12-year-old son from the car by his hair. Defendant alleges that conduct does not fit the definition of domestic violence and in any event should have been excluded under Evidence Code section 352. Again assuming without actually deciding that defendant is right and that trial counsel should have objected to that testimony, defendant has not alleged facts that establish prejudice. Defendant’s contrary view notwithstanding, it is not reasonably probable the jury would have reached results more favorable to defendant on any of the charges if they had not heard the noted evidence. If that evidence had been excluded the jury would still have heard the testimony of defendant’s former wife, Ms. Loomis, regarding defendant’s verbal threats and acts of violence against her. They also would have heard the testimony of Christina Geiger and Deputy Cloutier recounting not only what Ms. Mongeon had said, but also her appearance and demeanor at the time. In short, defendant has not demonstrated that the jury’s verdicts were influenced or affected by the evidence that he had once pulled Ms. Loomis’s son from the car by his hair.
Defendant has also failed to allege facts that demonstrate prejudice as a result of defense counsel’s failure to excuse a potentially biased juror. As noted previously, the prospective juror (Juror No. 8) expressed doubt during voir dire about her ability to put aside the fact that 20 years earlier her brother-in-law had been murdered, and also expressed doubt about whether she would want someone like her on the jury if she were on trial. At the outset we note that Juror No. 8 also stated that three years earlier she had been on a criminal jury that had been unable to reach a verdict, and that in her work as a respiratory care nurse in a hospital, she had seen people on drugs. These facts suggest a sufficient tactical reason for trial counsel to keep Juror No. 8 on the jury. More significantly, however, defendant has not demonstrated that it is reasonably probable the jury would have reached results more favorable to him on some or all of the charges if Juror No. 8 had not been on the jury. In order to show prejudice, defendant must allege facts that demonstrate Juror No. 8 was actually biased against him, i.e., that she had such fixed opinions that she could not impartially judge defendant’s guilt. (See, e.g., United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1344, 1349, quoting Patton v. Yount (1984) 467 U.S. 1025, 1035.) Here, again, defendant has not supported his claim with a declaration from Juror No. 8 and thus has failed to support his claim with reasonably available documentary evidence.
Defendant notes that his trial attorney not only kept Juror No. 8, but he also did not exercise any peremptory challenges.
Defendant did not submit a declaration from his trial attorney to support the habeas corpus petition. Instead, appellate counsel recounted in his declaration his unsuccessful efforts to contact defense counsel, including his contact with a State Bar investigator who is pursuing disciplinary charges against trial counsel on matters unrelated to this case.
The record reveals that Juror No. 8 was unsure whether she would be fair but in the process of expressing her concerns, also acknowledged she knew that defendant is presumed innocent until proven guilty, and that defendant would not get a fair trial unless the jurors waited until they had heard all the evidence before making a decision. The record does not demonstrate that Juror No. 8 had such fixed opinions that she could not be fair and impartial. At worst, Juror No. 8 was unsure whether she could fulfill her obligations as a juror and was struggling with that question. Defendant has not met his burden to show either deficient performance or prejudice that would in turn constitute a prima facie showing of ineffective assistance of counsel.
Defendant’s final allegation is that trial counsel was ineffective because he did not file a notice of appeal. That oversight was not prejudicial because on May 26, 2006, this court granted defendant’s motion to deem the notice of appeal constructively filed. Defendant was not prevented from filing or pursuing his appeal as a result of trial counsel’s oversight and therefore defendant has not made a prima facie showing that he was denied the effective assistance of counsel.
Because we conclude the factual allegations and supporting evidence do not demonstrate a prima facie case for relief based on ineffective assistance of counsel, we will deny defendant’s petition for writ of habeas corpus.
DISPOSITION
The judgment is modified by staying execution of the sentences imposed on counts 1, 3, and 4, in accordance with section 654. As modified, the judgment is affirmed.
The petition for writ of habeas corpus is denied.
We concur: Gaut, J., King, J.