Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F04065.
HOCH, J.
A jury convicted defendant Maury David Moore of infliction of corporal injury upon his spouse (Pen. Code, § 273.5, subd. (a)) and found that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court found that he had suffered a 1987 voluntary manslaughter conviction, alleged as a serious felony (§ 667, subd. (a)) and as a strike (§§ 667, subds. (b)-(i), 1170.12); and he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 14 years, consisting of six years for the offense, three years for the infliction of great bodily injury, and five years for the prior serious felony.
Undesignated statutory references are to the Penal Code.
The recent amendment to section 2933 does not entitle defendant to additional presentence credit because he has been committed for a serious felony. (§§ 1192.7, subd. (c)(8), 2933, subd. (e)(3).)
On appeal, defendant contends the prosecutor committed misconduct during his direct examination of the recanting victim when he informed the jury that defendant was in custody. Defendant further claims his trial counsel rendered ineffective assistance when he failed to object to the misconduct and to request a limiting instruction. We affirm the judgment.
FACTS
Prosecution Case
On April 26, 2008, at about 3:00 a.m., Sacramento Police Officer Derick Cannedy and his partner were dispatched to an apartment to investigate a report of “domestic violence in progress.” When Officer Cannedy arrived, he met the victim, Giselle Wallace, at the front door of her apartment. He immediately observed that she was crying and had fresh blood on her face. Officer Cannedy saw objects on the ground that looked out of place because such objects would have been on a shelf or table. He saw blood droplets on the kitchen floor and the refrigerator door and observed the remains of an 8-inch-by-10-inch picture frame on the floor with broken glass laying around the frame.
After noting that Wallace had a laceration above her left eye and that the eye was swollen almost completely shut, Officer Cannedy called for medical assistance. Officer Cannedy also took a preliminary statement from Wallace who appeared, in Officer Cannedy’s opinion, to be capable of providing a statement even though he had detected a “slight odor of alcohol” on her breath.
Wallace told Officer Cannedy that, during a verbal argument, defendant (her husband) had thrown items all around the house and had broken a mirrored door in the master bedroom. Following the verbal argument, he pushed her down to the floor, hit her two to three times, and threw the picture frame at her, causing the cut to her eye. Wallace told Officer Cannedy that defendant lived with her in the apartment.
Officer Cannedy observed that, in the master bedroom, the mirrored closet door had been knocked off its tracks and the mirror glass had been broken. There were blood droplets all around the bed, on the pillowcase, and in the sink of the adjacent bathroom.
Wallace related that, after defendant assaulted her, he left the apartment and took her car keys and the only apartment key. She expressed concern that, because the only apartment key had been taken, she would be unable to lock or secure the apartment before being taken away for medical aid.
Wallace told Officer Cannedy that she did not know where defendant had gone. However, she added that she did not want to press charges against him. During the interview, Wallace never mentioned the name “Kenneth Jones.”
Wallace was in the hospital for a couple of days and required four or five sutures to close the laceration above her eye. She also was treated for a bone fracture above the eye. The eye remained swollen for a week and a half. Medical records showed that Wallace had been treated for a six-centimeter laceration and multiple facial fractures. Those same records contained Wallace’s statement that she had been assaulted by defendant, her husband.
Less than two months later, at defendant’s preliminary hearing on June 3, 2008, Wallace testified that she had been injured by her ex-boyfriend, Kenneth Jones, and not by defendant. Following her testimony, the prosecution called Officer Cannedy to testify about his conversation with Wallace.
Wallace’s January 2010 trial testimony was consistent with her preliminary hearing testimony and inconsistent with her statements on the day of the incident. Wallace admitted that she was married to defendant at the time of the attack and at trial. She claimed that they were not living together and that he was residing in east Oakland at his grandmother’s residence, but she did not know the exact address. Before moving to Oakland, defendant had resided in Sacramento. Wallace did not know the exact address. When asked about her statement to Officer Cannedy that defendant was living with her at the time of the assault, Wallace answered that she did not recall having made such a statement.
Wallace claimed that she had been drinking heavily on the night of the attack. Kenneth Jones, whom she had dated in 2005, showed up on her doorstep unexpectedly and “just kind of came in” to the apartment. Wallace does not know Jones’s address, other than that he lives in New Orleans. Wallace testified that Jones seemed upset about Wallace’s earlier actions in breaking off their relationship and also wanted to reclaim some jewelry he had given her. Jones then followed Wallace into her master bedroom where they began fighting. Wallace surmised that, after a few minutes, she ran to the telephone and called the police. Jones ran toward the door, and Wallace assumed that he left the area.
When the police arrived at her apartment, Wallace told them that the assailant was defendant, not Jones. She did so because she “was afraid of [her] husband finding out that [she] had been... involved with another man” during “the course of [the prior] relationship.”
At trial in January 2010, Wallace claimed that she still maintained a “good” relationship with defendant and had no plans to divorce him. She indicated that she had been visiting him regularly for the past two years while he was in custody, generally seeing him every other week. This exchange between the prosecutor and Wallace ensued:
“Q He is obviously in jail, correct?
“A Yes.
“Q Have you been visiting him in jail?
“A Yes.
“Q When was the last time you visited him?
“A Um, Sunday.
“Q Sunday?
“A Yes. Yesterday.
“Q Yesterday? Okay. Do you know about how many times you have visited him? If you can, I know it’s hard to give an exact number, but in terms of since he has been -- since he has been in jail, how many times have you been to visit him?
“A Well, he has been there since 2008. Um, wow, a lot. I don’t know. Maybe once every other week maybe.
“Q That is about the average?
“A Average, maybe, yeah.
“Q And that is since he has been locked up, since [2008]?
“A Yes.”
Defense counsel did not object to the prosecutor’s questions, move to strike the references to jail, or request any sort of curative instruction.
The jury was instructed, both before and after Wallace’s testimony, that it must not be biased against defendant because he had been arrested, charged with a crime, or brought to trial.
Defense
The defense rested without presenting evidence or testimony.
DISCUSSION
Defendant contends the prosecutor committed misconduct during his direct examination of the recanting victim when he informed the jury that defendant was in custody. Defendant further claims his trial counsel rendered ineffective assistance by failing to object to the misconduct and to request a limiting instruction. We are not persuaded.
Claim of Prosecutorial Misconduct
“When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.] ‘To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.’ [Citation.] There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile; or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition.” (People v. Panah (2005) 35 Cal.4th 395, 462.)
Defendant acknowledges that his trial counsel did not object to the prosecutor’s questions nor did counsel move to strike the references to jail or otherwise request any sort of curative instruction. Nor does defendant claim to be within any of the foregoing exceptions to the forfeiture rule. Indeed, a timely objection and admonition could have cured any possible prejudice. Thus, defendant’s claim of prosecutorial misconduct is forfeited on appeal. (People v. Prince (2007) 40 Cal.4th 1179, 1275; People v. Panah, supra, 35 Cal.4th at p. 462.)
Claim of Ineffective Assistance of Counsel
Defendant contends his trial counsel’s forfeiture of his contention constitutes ineffective assistance. We disagree.
“‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when 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.’ [Citations.]” [Citation.]’” (Peoplev.Avena (1996) 13 Cal.4th 394, 418; fn. omitted.)
“‘“[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In this case, the appellate record does not reveal the tactical reason for defense counsel’s failure to object. However, a satisfactory explanation readily appears. As noted, Wallace spoke to Officer Cannedy on April 26, 2008. At defendant’s preliminary hearing less than two months later, Wallace testified that she had been injured by Kenneth Jones, not by defendant. Defense counsel could have foreseen that an objection would be futile because, in all probability, Wallace was about to testify--as she had done at the preliminary examination--that her assailant was Kenneth Jones, not defendant. Such testimony would open the door to evidence showing Wallace’s bias in favor of defendant. Her extensive history of jail visits would become admissible to demonstrate bias even if her jail visit testimony technically was not admissible at the moment the questions were asked. Because we do not know why defense counsel did not object, defendant’s claim of ineffective assistance of counsel is more appropriately brought in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
Defendant further contends his trial counsel rendered ineffective assistance in that he failed to request a protective instruction regarding his in-custody status. (Citing CALJIC No. 1.04; now CALCRIM No. 204.) We disagree.
CALCRIM No. 204 provides in relevant part: “The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.”
The bench notes for CALCRIM No. 204 provide in part, “If the restraints are not visible, do not give this instruction unless requested by the defense.” Here, defendant was not placed in visible restraints, and trial counsel’s failure to request the pattern version of CALCRIM No. 204 could not have been ineffective.
Perhaps recognizing that the pattern instruction was not applicable, defendant next contends his trial counsel should have requested the modified version of CALJIC No. 1.04 set forth in People v. Stevens (2009) 47 Cal.4th 625 (Stevens), at page 641, footnote 8. Once again, we are not persuaded.
The Stevens instruction provided: “The fact that the Defendant is in custody must not be considered by you for any purpose. That is not evidence of guilt and must not be considered by you as any evidence that he is more likely to be guilty than not guilty. You must not speculate as to why he is in custody. In determining the issues in this case, disregard this matter entirely.” (Stevens, supra, 47 Cal.4th at p. 641, fn. 8.)
Defense counsel’s failure to request the Stevens instruction could not have been prejudicial. Unlike Wallace’s statements to the investigating officers, her trial testimony was not credible. Examples include the following details: (1) defendant, her husband, was not living with her, but had been residing at two different residences in east Oakland and Sacramento; (2) she did not know the addresses of these places where defendant was residing; (3) the reason she identified her husband to police was to hide the fact that she had a boyfriend before they were married; and (4) the real perpetrator of the attack was an ex-boyfriend from her past, whose identity she did not disclose to police that night, and whose whereabouts are unknown to her. There is no reasonable probability that the jurors would have given her testimony greater weight had they been instructed to disregard the fact that defendant had been in custody since the attack.
Thus, there is no reasonable probability that, but for counsel’s failure to request the Stevens’ instruction, the result of the proceeding would have been any different. (Peoplev.Avena, supra, 13 Cal.4th at p. 418.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., HULL, J.