Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB900485 Duke D. Rouse, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Anthony Allen McGee appeals his jury conviction for one count of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). Defendant contends the trial court committed prejudicial error by admitting a hearsay account of the victim’s statements to police. He also claims he was prejudiced by instructional error and prosecutorial misconduct.
The defendant’s middle name is spelled Allen, Allan, and Alan throughout the record. We adopt the spelling from the March 9, 2005 abstract of judgment-Allen.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, the victim testified she and defendant dated for approximately 10 months and lived together during this time at more than one location. On February 2, 2009, defendant told the victim he had seen an ex-girlfriend. The victim began questioning defendant, but he did not want to talk and “shoved it off like it was no big deal.” The victim was hurt and very upset. An argument developed over the television. Defendant wanted it on; the victim wanted it off so they could talk. Frustrated, the victim unplugged the television. Defendant attempted to plug it back in, but picked up the wrong cord. The victim reached over to help; the next thing she knew, she was laying on the floor on her back. Defendant was on top of her pounding his fists into her face. The victim could not remember how many times defendant hit her.
When the victim got up, defendant shoved her across the bed. Her head hit the wall. According to the victim, her head put a hole or dent in the wall. Next, the victim recalled lying on the floor. Defendant climbed on top of her and started choking her with one hand. She was having a hard time breathing. While trying to push defendant off of her, the victim knocked over a dresser. Defendant finally got off of the victim; she grabbed her cell phone and dialed 911.
When the victim was on the phone with the 911 dispatcher, she saw defendant pick up a steak knife and scratch his arm with it. Defendant said he was going to tell police the victim did it to him, and if he was going to jail, she was going too. The victim fled the apartment and waited in the yard for police to arrive. She explained that she called police because: “He lost it. He was totally out of control.” She had never seen defendant that angry before.
During trial, the jury was shown a series of photographs taken in the emergency room after the incident that showed injuries to the victim’s face, head, and neck. The jury was also shown photographs depicting the condition of the room where the incident occurred, including the wall where the victim hit her head.
A couple of days after the incident, the victim went back to the emergency room because her right ear started bleeding; she had a hole in her eardrum.
The jury found defendant guilty of corporal injury to a cohabitant (§ 273.5, subd. (a) (count 1)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1) (count 2)). In a bifurcated proceeding, the jury found true allegations that defendant had two prior convictions, which qualified as strikes (§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and had served a prior prison term (§ 667.5, subd. (b)).
The transcript of defendant’s sentencing hearing indicates the trial court imposed “a minimum term of 25 years to life, ” plus a consecutive term of one year for the prior prison term enhancement, resulting in “the total term of 26 years.” The minute order of defendant’s sentencing hearing and the abstract of judgment are not entirely consistent with the transcript.
DISCUSSION
Admission of Victim’s Prior Consistent Statements
Defendant contends the trial court committed prejudicial error when it allowed the responding police officer to testify what the victim told him at the scene when police arrived in response to her 911 call. During trial, defense counsel objected to this testimony as hearsay. The trial court overruled the objection, assuming it was being offered for a nonhearsay purpose. The trial court cautioned the jury, “[I]t’s not being offered for the truth. It’s being offered as what the officer was told by the victim.” The prosecutor argued the testimony was admissible as “a prior consistent statement” by the victim. The court then said, “Well, I don’t know if it’s a prior consistent statement or not. All I’m saying is it is offered for what he was told by [the victim].”
Defendant believes the officer’s testimony should have been excluded as inadmissible hearsay. He contends the testimony did not qualify for admission under the prior consistent statement exception to the hearsay rule for two reasons. First, no prior inconsistent statement was admitted at trial to attack the victim’s credibility. Second, there was no challenge to the victim’s trial testimony based on an express or implied charge of recent fabrication, improper motive, or bias. According to defendant, any motive or bias the victim had against him arose during their fight on February 2, 2009, when he told the victim he had been with his ex-girlfriend, and this was before the victim made any statements to police.
Under Evidence Code section 791, a prior consistent statement can be admitted when: (1) a prior inconsistent statement is admitted and the consistent statement predated the inconsistent statement, or (2) an express or implied charge is made to show the witness’s testimony is recently fabricated, influenced by bias, or improperly motivated “and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” (Evid. Code, § 791, subd. (b).)
In People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse), for example, the defendant’s brother pled guilty and then testified against the defendant at trial. During cross-examination, defense counsel questioned the brother “extensively” about the plea agreement. (Id. at p. 491.) Thereafter, the trial court admitted prior consistent statements the brother made “several months before the plea bargain.” (Ibid.) On appeal, defendant argued the brother’s prior consistent statements were inadmissible under Evidence Code section 791, because “ ‘[n]o new motive for fabrication is engendered by the plea bargain.’ ” (Hillhouse, at p. 491.) The brother “had a motive to minimize his role in the crime even before he made the prior consistent statements.” (Ibid.)
Our Supreme Court in Hillhouse rejected this contention, explaining: “This is no doubt true, but defendant also implied at trial that the plea agreement provided an additional improper motive. A prior consistent statement logically bolsters a witness’s credibility whenever it predates any motive to lie, not just when it predates all possible motives. Accordingly, under Evidence Code section 791, ‘a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness’s testimony.’ [Citation.]” (Hillhouse, supra, 27 Cal.4th at pp. 491-492.)
As defendant contends, it is true the record suggests the victim had a motive to exaggerate or lie at defendant’s trial even before she talked to the police officer who responded to her 911 call on February 2, 2009. She testified at trial she was “very hurt” and “upset” at defendant during the incident on February 2, 2009, because he told her he had seen an ex-girlfriend. However, at trial, defense counsel’s cross-examination of the victim also suggested she was unduly influenced by a prosecution investigator after she made her initial statements to police at the scene. In this regard, the following colloquy occurred during cross-examination of the victim by defense counsel:
“Q Ms. Doe, you met with an investigator from the district attorney’s office last week...; is that correct?
“A Yes, I did.
“Q And my investigator from my department was also there; is that correct?
“A Yes, I did.
“Q And you refused to speak with him about this incident; is that correct?
“[PROSECUTOR]: Objection. Relevance.
“THE WITNESS: Yes.
“THE COURT: Overruled.”{RT 64-65}
Thus, the victim’s responses to defense counsel’s questions provided “an additional improper motive” for her testimony. Pursuant to Evidence Code section 791, the People were entitled to rehabilitate the victim’s credibility by introducing her initial statements to the police officer who responded to her 911 call. The statements to the responding police officer at the scene bolstered the victim’s credibility, particularly because they were largely consistent with her trial testimony, were made close in time to the incident without much time for reflection, and predated the victim’s contacts with the prosecution’s investigator. Therefore, there was no error by the trial court in admitting these statements.
Admission of Out-of-Court Statements by Defendant
The victim testified defendant picked up a steak knife while she was on the telephone with the 911 operator and scratched his arm with it. He then told the victim he was going to tell police she made the scratches on his arm. The responding police officer also testified defendant said “he had been stabbed by the victim.” Defendant contends, and the People concede, the trial court should have instructed the jury to view his admissions with caution using CALCRIM No. 358. Defendant argues the error was prejudicial.
CALCRIM No. 358 reads as follows: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]”
In reviewing a claim of instructional error, we must consider the instructions as a whole and assume the jurors were capable of understanding and correlating all of the instructions given. (People v. Butler (2009) 46 Cal.4th 847, 873.) “A trial court has a sua sponte duty to instruct the jury to view a defendant’s oral admissions with caution if the evidence warrants it. [Citations.] To determine prejudice, ‘[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.’ [Citation.]” (People v. Wilson (2008) 43 Cal.4th 1, 19.) The purpose of this cautionary instruction is to aid the jury in determining whether the defendant actually made the statements attributed to him. (Ibid.)
Here, the evidence of guilt was strong. The victim’s testimony and her statement to authorities were highly consistent. Her credibility was not seriously challenged, and her testimony was supported by physical evidence. The jury was shown pictures of the victim’s injuries taken at the hospital immediately following the incident. The jury was also shown pictures of the condition of the apartment where the violence occurred. The pictures were consistent with the victim’s testimony. In addition, the trial court gave other instructions that would have assisted the jury in determining the credibility of the testimony about defendant’s purported out-of-court admissions (i.e., CALCRIM Nos. 105, 318). These instructions minimized any possibility the jurors did not view defendant’s admissions with caution. We therefore conclude it is not reasonably probable defendant would have received a more favorable result had the trial court given the cautionary instruction.
Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct by making comments about prior incidents of domestic violence during rebuttal arguments, which justify a reversal of his conviction. The People argue defendant forfeited the issue because defendant’s trial attorney did not object.
The People are correct. The record shows no objection to the prosecutor’s comments. “When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Alternatively, defendant cites Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland), and claims his federal constitutional right to effective assistance of counsel was violated, because his trial attorney did not object to the prosecutor’s comments during closing argument. We therefore address defendant’s claim in the context of his ineffective assistance of counsel claim.
A cognizable claim of ineffective assistance of counsel requires a showing of serious errors by counsel, which prejudiced the defense. (Strickland, supra, 466 U.S. at p. 687.) To establish prejudice, a defendant must demonstrate “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 p. 694.)
“ ‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.) A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘Prosecutorial comment is reversible as misconduct under the federal Constitution when it “ ‘so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process’ ” ’; improper comment that ‘falls short of rendering the trial fundamentally unfair’ is error under state law. [Citation.]” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323.)
“ ‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citations.]” (People v. Lopez (2008) 42 Cal.4th 960, 972.) Here, the record does not show why there was no objection, and we cannot eliminate the probability counsel did not object for tactical reasons. For example, it is possible defense counsel believed an objection during the prosecutor’s closing argument would have placed too much emphasis on prior misconduct evidence.
Even if defendant could show counsel should have objected, he cannot establish prejudice. For the reasons outlined above, the evidence against defendant was very strong. The jury was already aware of prior domestic violence based on evidence presented by both sides during direct and cross-examination of the victim. The court’s instructions to the jury then reiterated that the People presented evidence of two prior incidents of domestic violence between defendant and the victim in November and January 2009.
In addition, our review of the record reveals the prosecutor’s allegedly offending remarks were actually fair comment on the evidence, so it is not likely an objection would have been sustained. During the defense closing argument, counsel attacked the victim’s credibility with the prior domestic violence evidence, stating: “How well was the witness able to remember and describe what happened? Well, we know she had a little problem with her memory. She couldn’t even tell us the exact dates of these prior acts of domestic violence. She couldn’t remember what exactly happened with the knife. She couldn’t remember exactly how many times she allegedly got hit.” Discounting the existence of corroborating physical evidence, defense counsel also argued the “whole case boils down” to the victim’s credibility.
Essentially, defense counsel’s closing argument was that the victim should not be believed because she had a history of making specious allegations of domestic violence against defendant. This argument suggested the prosecutor did not present all evidence of prior domestic violence because it would have shown the victim could not be believed. In other words, it was defense counsel’s comments that suggested there might have been more than the two incidents presented by the People. In rebuttal, the prosecutor simply said, “There was discussion about two prior acts or incidents, and there’s also jury instructions about all evidence is not necessary to be reported. There wasn’t any discussions about any and all prior incidents of domestic violence in this case. I’m limited to talk about the ones that we brought forward.” We therefore cannot agree these comments constituted prosecutorial misconduct. Nor can we agree with defendant’s contention the jury would have applied the prosecutor’s remarks in an objectionable manner to mean the evidence of the two prior domestic violence incidents “was merely the tip of the iceberg.” In our view, defendant misreads the record. In any event, when read in context and in light of the whole record, the allegedly offending comments are insignificant and could not be used to justify a reversal.
Having cited only a single harmless instructional error, we also reject defendant’s contention the record shows an accumulation of errors warranting reversal.
Sentence
On appeal, we may correct an unauthorized sentence involving “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” (People v. Welch (1993) 5 Cal.4th 228, 235.)
On May 28, 2010, we requested supplemental briefing from the parties because the sentence was unclear based on the record. The parties were requested to brief whether a remand is necessary to correct the sentence. We received a letter brief from the People on June 17, 2010, and from defendant on June 21, 2010.
The parties agree that a remand is unnecessary because the only authorized sentence under the circumstances is an indeterminate term of 25 years as to each count under the three strikes law, plus one year for the prior prison term. (§§ 667, subd. (e)(2); 667.5, subd. (b).) The parties also agree that the 25-year sentence on count 2 must be stayed pursuant to section 654. We concur. As a result, we conclude it is appropriate for us to modify the sentence.
DISPOSITION
The judgment is modified to reflect the following sentence: 25 years to life under section 667, subdivision (e)(2), on count 1, corporal injury to a cohabitant with great bodily injury; 25 years to life under section 667, subdivision (e)(2), on count 2, assault with great bodily injury; and a stay of the term imposed on count 2 pursuant to section 654. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment modifying the sentence. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.