Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF145467, Patrick F. Magers, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury convicted defendant and appellant Douglas Alexander Mialkousky of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found he had personally inflicted great bodily injury in committing the crime (§ 12022.7, subd. (a)). The court found defendant had three prior felony convictions that qualified as serious felonies and strikes, and had served four prior prison terms. (§§ 667, subds. (a)(1), (c), (e)(2)(A), 667.5, subd. (b), 1170.12, subd. (c)(2)(A).) He was sentenced to an aggregate prison term of 43 years to life. The court imposed and stayed one-year sentences for each of the four prior prison terms.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends: (1) the prosecutor committed prejudicial misconduct by making certain statements during his rebuttal argument to the jury; (2) he was deprived of the effective assistance of counsel because his trial attorney failed to impeach the testifying victim with evidence of the victim’s prior convictions; and (3) the prior prison sentence enhancements should be stricken, not stayed. We disagree with defendant’s arguments. However, as to one prior prison sentence enhancement, we will direct the trial court to state whether it is imposing and executing the enhancement or striking the enhancement in accordance with section 1385. We will also direct the court to correct a clerical error in the abstract of judgment.
II. FACTUAL SUMMARY
A. Prosecution Case
Aurelio Nungary and Maria Ochoa were involved in a romantic relationship. One day in August 2008, Nungary was waiting for Ochoa in his car outside Ochoa’s cousin’s house on Moreno Way in Moreno Valley. He saw Ochoa and defendant come out of the house, walking close together. Nungary was suspicious and thought defendant was “picking up on her.”
When Ochoa got in the car, Nungary asked about defendant. Ochoa said she had known defendant for 20 years and they had not been together. Nungary remained suspicious. Ochoa told Nungary to talk to defendant. She went into the house and brought defendant back outside. Nungary asked him if he and Ochoa had ever been together. Defendant told him they had not; they had just known each other for 20 years. The two men shook hands. As Nungary and Ochoa left, Nungary did not think there was any problem between he and defendant.
Approximately one week later, Nungary drove with Ochoa to the Moreno Way house. Ochoa walked in first. Nungary walked in and saw defendant in a room with three girls. Nungary shook the girls’ hands and then went to shake defendant’s hand. Defendant, however, refused to shake. Instead, he made a dismissive gesture and told Nungary in an angry tone, “‘[f]uck you’” and “‘[y]ou jacked me up.’”
Nungary asked defendant to go talk outside. Nungary testified he did not intend to fight defendant. According to Nungary, defendant walked outside, past Nungary, and toward the sidewalk; however, Nungary stayed near the front of the house where he felt safer. Defendant then walked back to Nungary, put his face within three inches of Nungary’s face, and told him, “‘You jacked me up.’” Nungary then felt (but did not see) a sharp knife against his neck.
Nungary moved back a little, and defendant again put the knife against his neck. Nungary then hit defendant in the jaw with his fist. Defendant fell to the ground. When Nungary tried to kick him, defendant slashed Nungary’s right leg. Defendant then got up, grabbed Nungary, and stabbed him several times. Nungary grabbed defendant and threw him down. Ochoa then came outside and stopped the fight by getting in between the two.
After he realized he had been stabbed, Nungary told Ochoa to take him to the hospital. As they were leaving, Nungary asked defendant, “‘Why did you stab me? Why did you have to stab me.’” Defendant told him, “‘You wanna do it again.’” Nungary heard someone tell him not to snitch.
When Nungary arrived at the hospital, he did not tell anyone that he had been stabbed because he “didn’t want to snitch.” He told them he had an accident.
A treating physician testified that Nungary had multiple lacerations to his legs and a stab wound to his chest that punctured his heart. He opined that the cuts were life threatening and caused by a sharp instrument, like a knife.
Later, Nungary told a detective about the fight and identified defendant in a photographic lineup.
The detective interviewed defendant at the police station. An audio recording of the interview was played to the jury. During the interview, defendant said he was sleeping on a couch when Nungary tapped him on the shoulder. Defendant told Nungary, “last time you came here you jammed me up. We’re not friends, get the fuck out of here.” Defendant said he felt like an “incident” was happening in front of the children and wanted to get Nungary out of the house. On their way outside, defendant picked up a keychain with a knife on it. Nungary hit him. Defendant then lunged at Nungary with the keys in his hand and hit him or stabbed him. He explained to the detective that he “didn’t mean to stab him.”
The detective did not find any knife or bloody keys during his investigation. He did find, in the glove compartment of Ochoa’s car, two baggies of marijuana that appeared to have been recently purchased.
B. Defense Case
Cynthia Gonzalez testified that she was at the Moreno Way home where the fight took place. She was in her bedroom talking with Ochoa and Ochoa’s cousin, Eddie Duran. Her daughter came into the room and told her that Nungary and defendant were fighting. She looked out her window and saw the two arguing. She saw Nungary hit defendant, who fell onto the driveway. She and Ochoa then went outside. The two men were hitting each other. She did not see that defendant had a weapon. Ochoa tried to get in between them to break it up. After the fight stopped, Ochoa and Nungary got into a car and left. Defendant walked away. She did not see a knife or bloody keys.
Ochoa testified that she had known defendant for 20 years. On the evening of the fight, she and Nungary drove around looking to buy marijuana. Then they drove to her cousin’s house. When she walked into the house, she saw defendant asleep. Nungary tried to shake defendant’s hand, but defendant said something like, “I’m asleep, leave me alone.” She heard Nungary ask defendant to go outside, then she went into a room to talk with Duran and Gonzalez.
Someone screamed, “‘Mary, they’re fighting.’” Gonzalez opened a window to look while Ochoa went outside. Ochoa saw Nungary hitting defendant. There was a dot of blood on Nungary’s shirt. Defendant said, “‘I stabbed him up, because he jammed me up, ’” and “‘[t]hat’s what you get for messing with a man.’” Ochoa did not see a knife, but heard her cousin Ruben say, “‘Give me the frickin’ knife, ’” and saw him grab defendant. Nungary told Ochoa to take him to the hospital. As they were leaving, she heard Duran say something like, “we don’t want any snitches here.”
III. DISCUSSION
A. Prosecutorial Misconduct
At the end of his rebuttal argument, the prosecutor said the following: “Look, this is serious. This is not a popularity contest. This is not whether you like [Nungary] better than the defendant. Because the reality is, you don’t know much about either one of these men. You’re not judging them as people; you’re judging their actions.... [¶] But we have concepts in our society like justice. But that’s just a concept. That’s a word that people use. Right now you are in the position—you held up your hand, agreed to an oath. You are the instrument of justice.... Only you can do that [find him guilty or not guilty]. This—you people are where the concept of justice gets implemented. [¶] Look, this man has had a fair trial. He had a fair interview. He had an opportunity to tell the police. He had a good police officer there. They’ve come in to trial, they’ve [had] the opportunity to look at every piece of evidence that we have. They’ve had an opportunity to cross-examine witnesses. They’ve had an opportunity to put their own witnesses up. They’ve had an opportunity to comment on the evidence. Every fairness has been given to this man. But now that all of this has been done, it’s time to do the right thing. This man needs to be held accountable for what he did. It’s serious. [¶] Even if you don’t really like [Nungary], you can’t let people in society, in residential neighborhoods run around stabbing people.”
At that point, defense counsel asserted an unspecified objection, which the court overruled. The prosecutor then concluded: “Thanks for your time. I hope you do the right thing. Thank you.”
Defendant contends the prosecutor’s statement that the jury “can’t let people in society, in residential neighborhoods run around stabbing people, ” constitutes prejudicial misconduct by inciting the passions and prejudices of the jury. We disagree.
In his discussion of prosecutorial misconduct, defendant also quotes the following from the prosecutor’s rebuttal: “Now, the defense said, well, maybe the motive is to get the defendant—or [Nungary] wants to get the defendant out of the picture. So the motive is, okay, [Nungary] is going to frame a man for serious charges [to] get him out of this picture. But there’s also a problem with that. You know, they’re not boyfriend and girlfriend anymore.” Defense counsel objected on the grounds that this was “[n]ot in evidence, ” to which the court instructed the jury that counsel’s statements are “not evidence; it’s argument.” Although defendant quotes this colloquy, he does not refer to or rely on it in his argument. We do not, therefore, address it. (See People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
The standard for evaluating claims of prosecutorial misconduct is well settled. A prosecutor’s conduct violates a defendant’s federal due process rights only if it is “‘so egregious that it infects “‘the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” [Citation.]’” (People v. Hamilton (2009) 45 Cal.4th 863, 920; People v. Dykes (2009) 46 Cal.4th 731, 760.) By contrast, conduct that does not render a trial fundamentally unfair is error under state law when it involves the use of “deceptive or reprehensible methods” to attempt to persuade the court or the jury, and it is reasonably probable the defendant would have realized a more favorable outcome had such methods not been used. (People v. Dykes, supra, at p. 760.)
“‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ [Citations.]” (People v. Dykes, supra, 46 Cal.4th at pp. 771-772.) We view the prosecutor’s statements in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
The statement defendant points to was made in the context of the prosecutor’s discussion regarding the seriousness of the jury’s task. It is not, the prosecutor stated, a popularity contest; the jurors must not judge the individuals involved, but rather the actions of the individuals. Doing the “right thing, ” he asserted, means holding defendant “accountable for what he did. It’s serious.” In this light, the prosecutor’s statement that, even if they did not like Nungary, “you can’t let people in society, in residential neighborhoods run around stabbing people, ” was probably reasonably understood by the jurors as relating to their task of judging defendant’s actions; not, as defendant asserts, to send a message to society. As such, the statement was not improper or unfair.
People v. Adanandus (2007) 157 Cal.App.4th 496 is instructive. In that murder case, the prosecutor argued: “‘With your verdicts in this case, I’m not asking you to bring Joseph Wills back to his mother; that’s not possible. But what you can do with your verdicts in this case is you can restore order. The sense of order, the sense of law, the 2500 block of 65th Avenue in the City of Oakland...’” and, “‘What you can do is restore justice to that street.... Restore the law to the 2500 block of 65th Avenue....’” (Id. at p. 511-512.) The Adanandus court rejected the defendant’s claim of prosecutorial misconduct. It explained: “Regarding the prosecutor’s ‘law and order’ comments, we note that it ‘is permissible to comment on the serious and increasing menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors. [Citation.] The prosecution may properly urge his points vigorously as long as he does not act unfairly.’ [Citation.] The prosecution’s references to the idea of restoring law and order to the community were an appeal for the jury to take its duty seriously, rather than efforts to incite the jury against defendant. Thus, they were not misconduct.” (Id. at p. 513.) The prosecutor’s statement in the present case was far less provocative than the prosecutor’s statements in Adanandus. As in that case, there was no misconduct here.
Moreover, even if the statement amounted to misconduct, any error was harmless. The comment consisted of a single, brief comment. The prosecutor’s closing and rebuttal arguments were otherwise unobjectionable and, it appears from our record, professionally asserted. The prosecutor focused on the evidence and, during rebuttal, responded to defense counsel’s arguments. With the possible exception of the comment defendant points to, there is nothing that might have improperly inflamed or incited the jury’s passion or exhort the jurors to base their decision on something other than the evidence. Moreover, the evidence of defendant’s guilt was strong, if not overwhelming. Based on our review of the entire record, there is no reasonable probability that the prosecutor’s concluding comment could have affected the outcome of the trial. (See People v. Rundle (2008) 43 Cal.4th 76, 162, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Adanandus, supra, 157 Cal.App.4th at pp. 514-515.)
B. Ineffective Assistance of Counsel
Defendant was tried twice for the assault on Nungary; the first trial resulted in a hung jury and mistrial. Prior to the first trial, defendant moved in limine for a ruling allowing him to impeach Nungary with evidence of his 1998 convictions for receiving stolen property and corporal injury upon a spouse, and a 2000 conviction for driving under the influence. The court granted the motion as to the 1998 convictions and denied the motion as to the 2000 conviction. During the first trial, defense counsel asked Nungary about the 1998 convictions, which Nungary admitted.
The second trial was presided over by a different judge. Prior to the second trial, defendant again filed a motion in limine to allow use of the convictions to impeach Nungary. A minute order concerning proceedings held on the day the motion was filed indicates that the court and counsel conferred informally in chambers without a court reporter. The minute order does not mention the motion in limine and the record is otherwise silent as to whether and how the court ruled on the motion. During trial, defense counsel did not question Nungary about the convictions during the second trial.
The judge in the first trial was Christian F. Thierbach. The judge in the second trial was Patrick F. Magers.
Defendant contends the failure to impeach Nungary with his prior convictions deprived him of the effective assistance of counsel. We reject the argument.
In order to prove that defendant had ineffective assistance of counsel, defendant has the burden of establishing that: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Holt (1997) 15 Cal.4th 619, 703.)
“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel’s conduct or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.) There is a “‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting Strickland v. Washington, supra, 466 U.S. at p. 689.) “[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Here, there is a conceivable reason why defendant did not use the prior convictions to impeach Nungary. It is conceivable, indeed likely, that the court precluded defense counsel from introducing the convictions. Defense counsel’s use of the prior convictions to impeach Nungary at the first trial shows that she was willing and able to use the convictions as impeachment evidence. Her presentation of the motion in limine before the second trial indicates her willingness and intent to use the evidence again. Our record does not explicitly disclose the court’s ruling. Yet, we can infer from the prior use of the evidence, counsel’s apparent intent to use the evidence at the second trial, and the subsequent lack of use, that the court denied the motion in limine and precluded defense counsel from using the evidence. If so, defense counsel cannot be faulted for complying with the court’s ruling. Stated differently, obeying the court’s evidentiary ruling is certainly a valid trial tactic and strategic reason for failing to impeach Nungary with the prior convictions.
It is, of course, possible that the court did not rule against defendant on the motion in limine; our record simply does not reveal what transpired in chambers between court and counsel. Nevertheless, in asserting ineffective assistance, it is defendant’s burden to affirmatively show, based on the record on appeal, that counsel had no rational tactical purpose for her omission. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) When, as here, the record on appeal sheds no light on why counsel failed to act in the manner challenged and there is a possible satisfactory answer, the claim must be rejected. (See People v. Vines (2011) 51 Cal.4th 830; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Based on our record, it is possible that the court precluded counsel from impeaching Nungary with his prior convictions, thus explaining the failure to do so. Therefore, defendant has failed to meet his burden of establishing ineffective assistance of counsel.
Moreover, defendant has failed to establish prejudice. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Holt, supra, 15 Cal.4th at p. 703.) “To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) The prior convictions that were not used to impeach Nungary were for receiving stolen property and corporal injury upon a spouse. They were more than 10 years old at the time of trial in this case. In light of the dubious impeachment value of such evidence and the strong evidence of defendant’s guilt, defendant has failed to establish a reasonable probability that a different outcome would have occurred if defense counsel was permitted to and did use the convictions to impeach Nungary.
C. Sentencing Issues
The court found true allegations that defendant had three prior serious felony convictions (§ 667, subd. (a)(1)), three prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), and had served four prior prison terms (§ 667.5, subd. (b)). In addition to sentencing defendant to 25 years to life (for the conviction on the assault) plus three years (for the jury’s finding that he personally inflicted great bodily injury), the court imposed five-year sentences for each of the three prior serious felony convictions. The court also imposed and stayed one-year sentences for each of the four prior prison terms (the section 667.5(b) enhancements). The court did not give any reasons for the decision to stay the section 667.5(b) enhancements.
Defendant contends the court should have stricken, rather than stayed, the four section 667.5(b) enhancements. The People agree with defendant as to three of the four enhancements, but disagree as to the fourth; regarding the fourth enhancement, the People assert that the trial court must either “impose or strike the prison prior enhancement in accordance with... section 1385.” As we explain below, we disagree with both sides as to the first three enhancements—in accordance with rule 4.447 of the California Rules of Court, the trial court properly stayed the enhancements. As to the fourth enhancement, the People are correct that the court does not have discretion to stay that enhancement; it must either enforce the enhancement or strike it and give the reasons therefor.
All further references to rules are to the California Rules of Court.
The three prior serious felony convictions for which defendant was sentenced under section 667 were based on separate convictions for burglaries in 1985, 1989, and 1991. These convictions are also the basis for three of the section 667.5(b) enhancements. As the People point out, our state Supreme Court has explained that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.) Thus, as to the first three section 667.5(b) enhancements, the greater enhancement—the five-year enhancement under section 667, subdivision (a)—will apply.
The fact that the lesser section 667.5(b) enhancement does not “apply” does not mean that it must be stricken. Rule 4.447 provides: “No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.” This rule was adopted “to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence.” (Advisory Com. com., 23 pt. 1B West’s Ann. Code, Rules (2006 ed.) foll. rule 4.447, p. 325, citing People v. Niles (1964) 227 Cal.App.2d 749, 756.)
Section 1385, which generally authorizes a sentencing court to strike an enhancement “in furtherance of justice” does not apply to our analysis of the first three enhancements. As we explained in People v. Lopez (2004) 119 Cal.App.4th 355 [Fourth Dist., Div. Two]: “It is important to distinguish between two possible reasons for staying the sentence on an enhancement. Ordinarily, an enhancement must be either imposed or stricken ‘in furtherance of justice’ under... section 1385. [Citations.] The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice. [Citations.] [¶] But rule 4.447 has nothing to do with a discretionary stay of an enhancement. It is limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.” (Id. at pp. 364-365.) Our reasoning in Lopez applies here. (See People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.) Accordingly, the court did not err in imposing and staying the first three section 667.5(b) enhancements.
The People properly cite to People v. Jones, supra, 5 Cal.4th 1142 for the proposition that when multiple statutory enhancements apply to the same prior offense, only the greater enhancement can be applied to a defendant’s sentence. However, as we explained in Lopez, it does not necessarily follow, as the People suggest, that the lesser enhancements must be stricken. (See People v. Lopez, supra, 119 Cal.App.4th at p. 364.)
Defendant relies on People v. Savedra (1993) 15 Cal.App.4th 738, People v. Jones (1992) 8 Cal.App.4th 756, and People v. Harvey (1991) 233 Cal.App.3d 1206 for the proposition that the enhancements must be stricken rather than stayed. None of these cases involve the application of rule 4.447. They are therefore inapposite.
A different analysis is required for the fourth section 667.5 enhancement. That enhancement was based upon a 2000 conviction for possession of a controlled substance, and was not the basis for any other statutory enhancement. Neither rule 4.447 nor Lopez has any application here. The court may impose and execute the enhancement or strike the enhancement in furtherance of justice under section 1385; but it may not impose and stay the enhancement. (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Because the court did not explain its reasons for its ruling on this point, we cannot determine the court’s intent. Accordingly, on remand, the court must impose and execute the one-year sentence on the fourth section 667.5(b) enhancement or strike it under section 1385 and set forth its reasons. (People v. Jordan, supra, at pp. 368-369.)
Finally, the People request that we order the trial court to correct a clerical error in the abstract of judgment: the abstract does not include the three-year sentence for the great bodily injury enhancement under section 12022.7, subdivision (a). Defendant does not object. An appellate court has the inherent power to correct any clerical errors in the abstract of judgment to reflect the true nature of the judgment or proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183.) Accordingly, we will direct the court to correct the error.
IV. DISPOSITION
The trial court is directed to either impose and execute or strike the sentence enhancement arising from defendant’s prior prison terms for the 2000 conviction for possession of a controlled substance. The court is further directed to prepare an amended abstract of judgment to reflect the imposition or striking of the sentence enhancement as described in the preceding sentence and to reflect the imposition of the three-year sentence for the great bodily injury enhancement under section 12022.7, subdivision (a). The trial court is further directed to forward copies of the minute order reflecting the court’s modification of the judgment and the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKinster Acting P.J., Miller J.