Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge., Los Angeles County Super. Ct. No. VA092673.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Miguel Angel Rodriguez Mendoza appeals from a judgment of conviction entered after a jury trial. On count 1, the jury found defendant not guilty of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)), on Viridiana Rodriguez-Vidal (Vidal). On count 2, the jury found defendant guilty of corporal injury to a spouse/cohabitant/child’s parent, Vidal (id., § 273.5, subd. (a)), but it found untrue the allegation as to count 2 that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the crime (id., § 12022, subd. (b)(1)). On count 3, the jury found defendant guilty of assault with a deadly weapon, an automobile (id., § 245, subd. (a)(1)), on Vidal. On Count 6, the jury found defendant guilty of assault (id., § 240) on Vidal.
The jury found defendant guilty on count 4 of assault with a deadly weapon, an automobile (Pen. Code, § 245, subd. (a)(1)), on Danny Solis Espana (Solis). On count 8, the jury found defendant guilty of assault with a deadly weapon, a knife (ibid.), on Solis. The jury found defendant not guilty on count 7 of assault with a deadly weapon, an automobile (ibid.) on Juan Carlos Ortega Espana (Ortega).
The trial court sentenced defendant to the middle term of three years on count 2, with a consecutive one-year term on count 3. It imposed concurrent three-year terms on counts 4 and 8. It stayed sentence on count 6 pursuant to Penal Code section 654.
On appeal, defendant claims ineffective assistance of counsel. We affirm the judgment.
FACTS
Defendant and Vidal had a six-year relationship and a five-year-old son. In the beginning of November 2005, Vidal ended the relationship. Defendant telephoned her numerous times, attempting to reconcile, but Vidal did not respond.
On November 17, 2005, as Vidal was pulling out of a parking spot by the Auto Zone in South Gate, defendant drove up and positioned his car behind her truck, preventing her from leaving. Defendant’s mother, sister and nephew were with him.
Defendant approached Vidal’s window and told her he wanted to talk. She said she was not getting back together with him. Defendant kicked her driver’s side mirror, breaking it. Vidal began yelling at him.
Defendant’s mother, Maria Mendoza (Mendoza), approached Vidal and asked her to come back to Mendoza’s house, so they could talk. Vidal refused. She said she was not getting back together with defendant; she had broken up with him because of “the drugs.” Mendoza opened the door of the truck and began scratching Vidal and trying to get her out of the truck. Vidal tried to fight back, but defendant grabbed her hands. Eventually, defendant and Mendoza pulled Vidal from the truck. She fell to the ground. Defendant and Mendoza hit and kicked her while she was on the ground.
Mendoza was a codefendant below.
Solis and his cousin, Ortega, were coming out of the Auto Zone and saw defendant and Mendoza attacking Vidal. They told defendant and Mendoza to leave Vidal alone. Mendoza told them not to get involved. Defendant ran back to his car and began driving toward Vidal. She saw him and jumped into her truck. Defendant rammed the open driver’s side door.
Solis and Ortega began yelling at defendant. Defendant drove at them. When they moved out of the way, he circled around and drove at them again. He did this several times. He then got out of his car. He was holding a knife and made stabbing motions toward Solis. Mendoza called to defendant that they should go. Defendant and Mendoza returned to his car and drove away. Defendant then telephoned Vidal and apologized for his actions.
When the police arrived, Vidal told an officer that defendant had cut her on her hand with a knife. At trial, however, she testified that she was not sure how her hand had been cut. She thought defendant might have caused the injury when he was holding her hands.
DISCUSSION
When a defendant raises a claim of ineffectiveness of counsel, he must establish that his “‘counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Defendant contends he was denied the effective assistance of counsel when his trial counsel failed to object to Vidal’s testimony concerning defendant’s drug use as the reason she ended their relationship. He argues that evidence of his drug use was inadmissible and prejudicial. Specifically, he claims there was conflicting evidence as to whether he inflicted corporal injury on Vidal, in that Vidal testified she did not know how she received the cut on her hand. Additionally, defendant claims that the evidence he assaulted Vidal and Solis with his car, and Solis with his knife, rather than merely trying to scare them, was weak. Absent the admission of the evidence of his drug use, the jury might have acquitted him.
The jury’s verdicts make it clear that the jury considered the evidence as to each charge and did not convict defendant based on the evidence of his drug use. The jury clearly believed that defendant caused the cut on Vidal’s hand, based on her testimony, but it did not believe the conflicting evidence that he caused the injury with a knife. For that reason, it acquitted him of assault with a deadly weapon, a knife, on count 1 and found untrue the allegation on count 2 that he used a knife to inflict corporal injury on Vidal.
The jury found defendant guilty of two counts of assault with a deadly weapon, an automobile and a knife, on Solis. It found defendant not guilty of assault with a deadly weapon, an automobile, on Ortega, however. Ortega did not testify. Solis did. While Solis testified that Ortega was with him when defendant drove his car at him, Solis testified that defendant “kept trying to drive in, like make a left to hit me because I was on the inside. So he kept just trying to hit me.” (Italics added.) Then, Solis testified, “He got out and he pointed a knife at me.” (Italics added.) It appears that the jury found Solis’ testimony established an intent to injure Solis but insufficient to establish an intent to injure Ortega. It thus convicted defendant of assault on Solis only. (People v. Rocha (1971) 3 Cal.3d 893, 899; People v. Brown (1989) 212 Cal.App.3d 1409, 1419.)
That the jury convicted defendant of some of the charged offenses but not of others supports a conclusion that the jury was not unduly prejudiced by the evidence of defendant’s drug use but was able to consider the evidence dispassionately and reach verdicts based upon the evidence. (People v. Chatman (2006) 38 Cal.4th 344, 370.) In light of the evidence presented which was, for the most part, without serious conflict, it is not reasonably probable that the jury would have acquitted defendant had it not heard the evidence regarding defendant’s drug use. Accordingly, defendant has failed to prove the prejudice necessary to establish ineffective assistance of counsel. (In re Cudjo, supra, 20 Cal.4th at p. 687; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
The judgment is affirmed.
We concur: VOGEL, Acting P. J. ROTHSCHILD, J.