Opinion
F073166
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. RHETT SCHULLER, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF46598, CRF47322, CRF47626, CRF47635)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After two incidents of domestic violence committed months apart against his wife, defendant Rhett Schuller was charged in Tuolumne Superior Court case No. CRF46598 with five offenses: inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a) (counts 1 & 2)), making criminal threats (§ 422, subd. (a) (count 3)), misdemeanor resisting arrest (§ 148, subd. (a)(1) (count 4)), and misdemeanor disobeying a protective order (§ 166, subd. (a)(4) (count 5)). Attached to counts 1 through 3 were the sentence enhancement allegations that defendant served four prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
Although not relevant to any issues raised in this appeal, sections 148, 166 and 273.5 were amended subsequent to defendant's conviction and sentencing. (Sen. Bill No. 411, approved by Governor, Aug. 11, 2015 (2015-2016 Reg. Sess.) ch. 177, § 2 [§ 148]; Sen. Bill No. 352, approved by Governor, Sept. 8, 2015 (2015-2016 Reg. Sess.) ch. 279, § 1 [§ 166]; Sen. Bill No. 883, approved by Governor, Sept. 13, 2016 (2015-2016 Reg. Sess.) ch. 342, § 1 [§ 166]; Sen. Bill No. 1005, approved by Governor, July 1, 2016 (2015-2016 Reg. Sess.) ch. 50, § 69 [§ 273.5].)
Defendant subsequently failed to appear for a court hearing after being released on bail and a bench warrant for his arrest was issued. After issuance of the warrant, defendant committed a third act of domestic violence against his wife and was charged in Tuolumne Superior Court case No. CRF47635 with one count of inflicting corporal injury on a spouse (§ 273.5, subd. (a) (count 1)), with an attached sentence enhancement allegation for committing a felony while released from custody (§ 12022.1, subd. (b) (on-bail enhancement)) and the four prior prison term allegations (§ 667.5, subd. (b)).
Defendant was charged with failing to appear for the court hearing in a separate felony case, discussed post in footnote 4. (§ 1320.5.)
The trial court granted the prosecution's motion to consolidate Tuolumne Superior Court cases Nos. CRF46598 and CRF47635, and defendant waived his right to a jury trial. After a bench trial, the court found defendant guilty of the three domestic violence offenses, making criminal threats and resisting arrest, but acquitted him of disobeying a protective order. In bifurcated proceedings, defendant admitted he served four prior prison terms and he admitted the on-bail enhancement.
In Tuolumne Superior Court case No. CRF46598, the trial court sentenced defendant to the upper term of four years on count 1 (domestic violence), a consecutive one-year term on count 2 (domestic violence), a consecutive eight-month term on count 3 (criminal threats), and a concurrent term of one year on count 4 (resisting arrest). In Tuolumne Superior Court case No. CRF47635, the court sentenced defendant to a one-year term on count 1 (domestic violence), to run consecutive to the sentence for making criminal threats, plus an additional two years for the on-bail enhancement. The trial court imposed and stayed a term of four years for the four prior prison term enhancements.
The trial court sentenced defendant to a total aggregate term of 12 years in prison. In addition to the sentence of eight years eight months imposed in defendant's two consolidated cases, defendant was sentenced in two additional cases in which he pled guilty. In Tuolumne Superior Court case No. CRF47322, which involved offenses committed in May 2015, defendant was sentenced to eight months for driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)), plus an additional two years for the on-bail enhancement (§ 12022.1). In Tuolumne Superior Court case No. CRF47626, he was sentenced to eight months for failing to appear for a court hearing (§ 1320.5), and the trial court ordered the on-bail enhancement stricken pursuant to section 1385.
On appeal, defendant challenges the trial court's determination that the on-bail enhancement was bifurcated. (§ 1044.) If we agree the trial court erred in this regard, he claims jeopardy attached to the enhancement when the bench trial commenced and he is entitled to reversal of the enhancement. Relatedly, he claims he preserved his double jeopardy claim for review, the trial court erred in not holding a jury trial on his double jeopardy claim, and if we find the double jeopardy issue is not cognizable on appeal, he must be permitted to withdraw his plea and he received ineffective assistance of counsel. Separately, defendant also challenges the accuracy of the probation report. He claims the trial court erred when it failed to make the two corrections requested by defense counsel and he claims trial counsel's failure to request two additional corrections constituted ineffective assistance of counsel.
The People dispute defendant's entitlement to any relief on his claims. They concede defendant's double jeopardy claim was preserved for review, rendering his ineffective assistance of counsel claim moot, but they contend the trial court did not err in finding the on-bail enhancement bifurcated. They also contend the trial court had the authority to reopen the case and permit the prosecutor to present evidence on the on-bail enhancement. (§ 1094.) With respect to the probation report, the People contend the trial court properly declined to add the information requested by defendant and trial counsel was not ineffective in failing to request the other two corrections raised by defendant in this appeal.
We agree with the People that the trial court did not abuse its discretion in bifurcating the on-bail enhancement and, therefore, we do not reach the People's alternative argument regarding the court's discretion to reopen the case and we do not reach defendant's double jeopardy claim. We also conclude the trial court did not err in declining to correct the probation report nor did trial counsel's failure to request additional corrections constitute ineffective assistance of counsel. Accordingly, we affirm the judgment.
FACTUAL SUMMARY
I. First Charged Incident of Domestic Violence
A. Cynthia's Testimony
The first charged incident of domestic violence occurred on the night of December 19, 2014. Cynthia and defendant had been married approximately four months. At several points during trial, Cynthia testified she loved her husband and she did not want the charges against him prosecuted. She stated defendant gets violent when he drinks or uses drugs and his problem with drinking and drugs needs to be addressed, but she did not want him to go to jail or prison.
Cynthia's daughter, Grayson, had recently moved away, and she and her boyfriend returned that night around 9:30 or 10:00 p.m. to pick up some items. Cynthia testified that she and defendant were both intoxicated and had been arguing and calling each other names. Her daughter asked if defendant was in one of his moods and Cynthia responded affirmatively. She subsequently went outside to the garage to tell defendant not to fight while her daughter was there. Cynthia testified she became angry and "attacked" defendant first by picking up a box of tools and throwing it at him. The next thing she remembered was waking slightly in her daughter's car and then waking up in the hospital. She sustained a gash in the area of her eye, a cut on her head, a scratch and bruise on her arm, and a bruise on the inside of her elbow.
Cynthia remembered giving a statement to a sheriff's deputy and telling him that defendant came home in a bad mood and was yelling and calling her names. She also remembered telling the deputy she went into the garage to ask defendant not to call her names in front of her daughter and to stop yelling at her. She testified she did not remember telling the deputy that she was pushed or that she hit her head on a table as she went down. She also did not recall telling the deputy that she did not want to approach defendant because he was going to beat her to a bloody pulp and she denied feeling that way.
On cross-examination, Cynthia testified she also gets violent when she drinks and she went into the garage that night looking for a fight. As related to defendant's statement, discussed ante, Cynthia testified she had no recollection of being taken to the ground by defendant and then getting up and kicking him in the testicles, but she testified she was angry and wanted to hurt him. She also had no recollection of being taken to the ground again and hitting her head or of coming from behind and scratching defendant. When asked if coming up behind defendant and scratching him was something she had done before, she said no.
On redirect, Cynthia testified the toolbox hit defendant and she did not remember defendant taking her to the ground by her throat.
B. Grayson's Testimony
Grayson testified that when she and her boyfriend arrived that night for a visit, defendant was outside on the deck. He did not say anything to her and she figured he was in one of his moods, by which she meant he had too much to drink and was in a bad mood. She and her boyfriend went inside where she and her mom talked. Cynthia looked upset and told Grayson defendant was in one of his moods and was going to beat her to a bloody pulp, but Grayson thought everything was going to be fine because she and her boyfriend were there. She and her mom hung out and relaxed inside while defendant stayed outside.
Grayson lived with her mother and defendant on and off before moving out in December 2014, but she never saw defendant get physically violent with her mother because she always left when he was drinking and in an angry mood. She also never saw her mother violent toward defendant. Although Grayson had heard defendant say aggressive things to her mother before, that night she did not see him drinking or hear him calling her mother names and she did not hear them argue.
After Grayson and Cynthia finished talking, Grayson left Cynthia's room and Cynthia left the house. She did not appear upset. Grayson and her boyfriend then went to Grayson's room to hang out.
Approximately 10 or 15 minutes later, they heard a loud crash from outside. Defendant came inside a minute later and told Grayson she needed to check on her mom, who was in the detached garage. Grayson found Cynthia passed out on the garage floor on top of some tools "with blood pouring out of her head." Defendant said he was sorry for what he did and did not know what happened. He did not say anything about the tools and Cynthia had no recollection of what happened.
Grayson initially thought her mom was dead and testified it took her about six minutes to get her mom to wake up. Defendant helped Grayson put Cynthia in the car, but when he got in, too, Grayson told him to leave. Grayson's boyfriend then drove Cynthia and Grayson to the hospital.
C. Statements to Law Enforcement
Tuolumne County Sheriff's Deputy Frank Leyva responded to the hospital, where Cynthia was lying on a bed crying hysterically. She appeared to be in pain and intoxicated. Cynthia told Leyva her husband was in a bad mood and calling her names. She went to the garage to confront him because she did not want him acting that way while her daughter was there. She did not remember what happened next and woke up in her daughter's car. Leyva testified Cynthia told him, "I don't know. I don't even know if he even hit me." She thought defendant might have pushed her and she hit her head. She said she remembered hitting her head, but did not know if defendant swung at her. Leyva testified Cynthia sustained a one-inch cut that bled.
The Tuolumne County Sheriff's Department responded to all three domestic violence incidents.
Grayson told Leyva she came for a visit and asked her mother if defendant was in "one of his bad moods." Grayson stated Cynthia said defendant had been in a bad mood and calling her names since she got home. Grayson also stated Cynthia said she wanted to speak with defendant about his behavior, but he made a comment he was going to beat her to a bloody pulp.
Deputy Wesley Durnall responded to Cynthia's and defendant's residence that night and took defendant's statement. When Durnall arrived, defendant was standing in front of his garage in a bloody shirt and he appeared intoxicated. His speech was slurred and he smelled of alcohol.
Defendant told Durnall he had approximately 18 beers that day, and he and his wife had a fight and "he had to put her down by the throat." Defendant said Cynthia came into the garage and told him to behave while her daughter was there. They argued and she antagonized him. When he would not "give in to it," she came at him from behind and "began to scratch his back." When he turned, she slapped his face, and he grabbed her by the throat and took her down to the ground. After he let go, she got up and kicked him in the testicles. After he took her to the ground by the throat a second time, he noticed she was unconscious and bleeding. Defendant stated he did not know what Cynthia hit her head on and he placed her in Grayson's vehicle.
Durnall determined the blood on defendant's shirt came from Cynthia. In the garage, there were tools scattered on the floor and a puddle of blood with some spatter. Durnall did not recall seeing a toolbox, or seeing any redness or bruising on defendant's face. Durnall observed what he thought was a scratch with dried blood at the base of defendant's neck, which defendant attributed to Cynthia. Defendant did not want to Durnall to see his back and Durnall did not observe any other injuries.
Durnall saw Cynthia's injuries at the hospital, and he was aware of Cynthia's statement from speaking with Leyva. In his later-written report, Durnall concluded Cynthia was the primary aggressor.
II. Second Charged Incident of Domestic Violence
A. Cynthia's Testimony
The second charged incident of domestic violence occurred the night of March 2, 2015. At approximately 10:30 p.m., Cynthia, defendant and Cynthia's 21-year-old son, Spencer, were hanging out at Cynthia's and defendant's mobile home. They were all drinking and having a good time laughing, dancing and playing music. Defendant went into the bathroom and when he emerged, he was angry; Cynthia could see the change in his eyes. Defendant and Spencer bumped each other in the hallway and exchanged words. Defendant told Spencer, "I'm going to kick your ass." Cynthia got in between them and escorted her son home to his adjacent mobile home.
Cynthia and defendant moved to another location in Tuolumne County between the December 2014 incident and the March 2015 incident.
Cynthia testified she returned home and confronted defendant about his mood change. She said she was angry and pushed defendant. He then tackled her onto their bed, she "got up swinging," they wrestled, and her head hit the wall. After she was able to get up, she returned to Spencer's home. Someone called the police and an EMT came, but Cynthia did not feel she needed to go to hospital. She sustained a cut on her head, which she described as a scratch that bled a lot.
Cynthia gave a statement to the sheriff's deputy who later responded to her son's mobile home. She remembered telling the deputy defendant yelled at Spencer and began pushing Spencer with his chest. She also remembered telling the deputy that at one point, defendant was on top of her on the bed and he had his forearm over her mouth. She testified she and defendant were screaming at each other, but she did not recall telling the deputy what was said. She also did not recall telling the deputy that defendant said, "It's time to get a beating like you never have been beaten before," or "I'm going to kill you." Cynthia testified she did not recall telling the deputy that defendant hit her on the side of her head and she saw stars, or that she feared for her life, and she denied fearing defendant that night. Cynthia said she did not remember telling the deputy there was an ongoing problem with domestic violence and she testified there had only been the two incidents in December and March. Cynthia also did not recall telling Spencer her skull was cracked and, if she did, she was referring to the cut. She recalled telling the deputy that defendant attacked her without warning and took her to the ground, but she testified that was not what happened. Instead, she yelled at defendant and pushed him when she returned to their mobile home.
On cross-examination, Cynthia testified that after she returned from escorting Spencer home, she pushed defendant hard while in the hallway between the kitchen and bathroom. Defendant put her on the bed, she began swinging at him and they wrestled. He tackled her again and at some point, she hit her head on the corner of the kitchen wall. Cynthia attributed some of her memory problems at trial to drinking that night.
During cross-examination, Cynthia also described an incident that occurred at the end of January or the beginning of February. Defendant had told her he hit Spencer and she held a hatchet over him as he sat on the couch. A neighbor walked in and told her to stop, which she did.
B. Spencer's Testimony
Spencer's testimony was equivocal at times; he stated he did not remember anything and had a bad memory, but also confirmed some details. Spencer testified he was over at Cynthia's and defendant's home that night. Defendant confronted Spencer and chest bumped him once. Cynthia intervened and went outside with Spencer. He told a deputy that he heard his mother yelling after he left, and she came back over and told him defendant had hit her. She said her skull was cracked and she was bleeding from her head. Cynthia calmed Spencer down and he cleaned her up. His uncle, who was living there at the time, called the police.
Spencer recalled speaking with a deputy, but he testified he did not recall telling the deputy that defendant started yelling at him about a dog, stated he was going to kick Spencer's ass, and chest bumped Spencer more than one time. He also denied telling the deputy he saw bruising on the side of Cynthia's face.
C. Law Enforcement Testimony
Corporal Jeff Gempler responded to Spencer's mobile home. Cynthia was sobbing and holding a rag to her head. She had a cut and a hematoma on her head, and bruising on the right side of her face. Cynthia told Gempler that she, her son, and defendant were drinking together when defendant became angry with Spencer over a dog. Defendant began chest bumping Spencer, and Cynthia got between them and walked Spencer home. She stated when she returned, defendant tackled her without warning as she walked in and she thought that was when she sustained her head injury. Cynthia stated she got up and walked to the bedroom, where defendant jumped on top of her and knocked her on the bed. He held a forearm across her mouth and said, "It's time to get a beating like you've never had a beating before." He slapped her on the side of the head and said, "I'm going to kill you." Cynthia said she saw stars and feared for her life. She was able to get away and return to Spencer's mobile home.
Gempler testified Cynthia did not go into a lot of detail when she talked to him, and she did not state she pushed defendant or used threatening language. She smelled of alcohol, but did not say how much she had to drink that night and it was hard for Gempler to tell if she was intoxicated because she was sobbing. Gempler testified Cynthia was not slurring her words, however.
Spencer told Gempler that after defendant chest bumped him several times and his mother escorted him home, he heard her yelling approximately 15 minutes later. He ran back to her trailer and Cynthia said her head was cracked.
Deputy Israel Speer also responded to the mobile home park. Gempler and Deputy Newman were already there, and Gempler directed Speer and Newman to locate defendant. They found him a few minutes later at his mobile home approximately 25 yards away. Defendant had a beer in his hand and he appeared intoxicated; his speech was slurred and he was swaying. He said to the deputies, "What the fuck is going on?" and "Fuck you." Speer informed defendant he was under arrest for domestic violence and directed to put his beer down. Defendant was uncooperative and did not comply with repeated commands. A struggle commenced, but Speer and Newman were eventually able to get defendant handcuffed and into the patrol car. Defendant calmed down by the time he was transported for booking and removed from the car.
Newman did not notice any injuries on defendant. Speer observed some scratches on defendant's forehead. Defendant was bald and he said he sustained the scratches while shaving his head.
Relevant to the charge for which defendant was acquitted, Gempler also testified he checked for any outstanding warrants against defendant and, at that time, Spencer did not have a protective order against defendant.
III. Third Charged Incident of Domestic Violence
A. Cynthia's Testimony
The third charged incident of domestic violence occurred on July 7, 2015. The previous day, defendant called Cynthia and asked if he could come home. He had been gone for a week because there was a warrant for his arrest, and he told Cynthia he was going to clean up and turn himself in. Cynthia agreed defendant could come home, but she did not want him drinking and she told him he needed to turn himself in. When she arrived home around 9:00 or 10:00 that night, defendant was there.
Defendant received a telephone call from a woman that night and Cynthia asked him what was going on. Defendant told her he had been with the woman during his absence and Cynthia hit him. They went to bed and continued arguing. Defendant "said some pretty foul things to [her]" and she hit him again. Defendant held Cynthia down on the bed and pulled her hair. She told him to leave several times during the argument, but he refused. They subsequently went to sleep. She testified on cross-examination that at some point that night, she grabbed a knife and tried to cut herself, but defendant took it away.
These events were not part of the charged offense.
The next morning, they got up and said some "foul" things to one another, but they kept their distance. Defendant was drinking that day, but Cynthia was not. In the early afternoon, Cynthia said something to defendant that he did not like and he hit her with a closed fist. She testified she assumes she was knocked out for several seconds because when she woke up, she was on the floor and defendant was leaving in his vehicle. She went outside and threw a rock at the vehicle, and she told Spencer by text message to call the police because defendant had just hit her. She sustained bruises to her arm and hand and she had a visible lump on her head. She testified the bruises on her hand were mostly self-inflicted, though, because she hit defendant hard while arguing.
Cynthia confirmed she gave a statement to a sheriff's deputy who responded to Spencer's mobile home. She testified she told the deputy she pushed defendant and he slammed her head into the bed several times. She also testified she told the deputy she hit defendant in the head several times to get him off of her, and she felt dizzy, fell to the ground and lost consciousness for 5 to 10 seconds after defendant hit her in the head just above her ear. She testified she did not remember telling the deputy that when she regained consciousness, defendant was standing over her laughing and she stated she did not recall that. She said she remembered telling the deputy she was afraid defendant was going to hit her again, but she testified defendant was not there when she regained consciousness and her fear was that defendant was going to return and hit her again.
B. Spencer's Testimony
Spencer testified that he received a text message from his mother stating, "Call the cops. He knocked me out." Spencer also stated that he had obtained a protective order against defendant a month or two earlier, after an incident in which defendant pushed him down.
C. Law Enforcement Testimony
Deputy Jeffrey Hunt responded to the mobile home park where Cynthia was being treated by paramedics. She had red marks on the top of her ear, arm and hand. Hunt also felt a lump on her head. Hunt thought Cynthia had been drinking, but she was not "fully intoxicated."
Cynthia told Hunt she allowed defendant to come back home the night before and they argued as they went to bed. They continued to argue the next morning and defendant became upset. He grabbed her by the hair and slammed her head into the bed several times. Cynthia struck defendant several times and was able to get away. They both then continued with their day and defendant left for a while. He returned shortly after noon and started yelling and cussing at her. She yelled and cussed back at him, and he stepped forward and hit her above her left ear with a closed fist. Cynthia stated she felt dizzy, fell to the ground and was unconscious for 5 to 10 seconds. When she awoke, defendant was standing over her laughing. Cynthia stated she thought defendant was going to strike her again and she tried to swing at him, but she was weak and unable to do so. She got away and texted her son to call 911. Cynthia told Hunt she also threw a rock at defendant's car as he was leaving.
Spencer told Hunt that his mother texted him and told him to call 911 because defendant had just knocked her out.
Deputies located defendant later that same afternoon. He was behind the wheel of his vehicle in the main driveway of the mobile home park. He was unconscious and snoring, with his foot on the brake and the vehicle in the drive position. Deputies were unable to wake defendant up by yelling at him. Hunt testified that after deputies roused him with a sternum rub, he stated, "I've been fucking up."
DISCUSSION
I. Bifurcation of On-bail Enhancement
A. Parties' Positions
In this case, the trial court bifurcated the determination on the prior conviction enhancements under section 667.5, subdivision (b). At issue is whether the trial court erred in also concluding that it had bifurcated the on-bail enhancement. Defendant argues there was no agreement to bifurcate the enhancement, the transcript is not ambiguous on this point, and any arguable ambiguity in the record should be resolved in his favor.
The People respond that although the record is somewhat unclear, as the trial court recognized, the court's finding of fact should be upheld on review where, as here, it is supported by substantial evidence. They contend defendant's disagreement with the court's interpretation of the record is not sufficient to demonstrate error.
In reply, defendant disputes that the trial court's ruling is reviewed for substantial evidence. He argues the issue "is not, at its core, a factual question," and is instead a legal question we must review de novo.
B. Summary of Proceedings
Over the course of the relevant proceedings, defendant had six pending cases: the two domestic violence cases at issue in this appeal, the case arising from his failure to appear for a court hearing, a DUI case, and two misdemeanor cases. In addition to the separate felony charge he faced for failing to appear for a court hearing, his failure to appear led to the attachment of an on-bail enhancement to the charge in his second domestic violence case.
Defendant pled guilty in the failure to appear and DUI cases, as discussed ante in footnote 4, and the prosecutor dismissed the two misdemeanor cases.
Prior to the bench trial in this case, the prosecutor sought to consolidate the two domestic violence cases and the case arising from defendant's failure to appear for a court hearing. The trial court granted the motion as to the two domestic violence cases but denied it as to the failure to appear case. Defendant subsequently waived his right to a jury trial and just before opening statements, the following initial discussion occurred regarding bifurcation:
"THE COURT: [¶] ... [¶] All right then. Are there any issues we need to deal with before we start this trial? [¶] [Prosecutor]?
"[PROSECUTOR]: I'm a little confused. So—impeachable priors. So—you would know them anyway, so I'm not sure. Do we need to talk about whether something is impeachable?
"THE COURT: "I don't know whether there is a claim whether something is impeachable, so—the danger there is much less; however, there could be an issue for impeachment. I have read the file. I know what the priors are.
"[DEFENSE COUNSEL]: Just that the [Health and Safety Code section] 11359, that is not—no longer a conviction. It was overturned from 2012.
"THE COURT: Let's see. [¶] What happened there, [defense counsel]? Was it reversed on appeal?
"[DEFENSE COUNSEL]: Yeah. And then Your Honor was the last one who heard the dismissal by the D.A. here last year.
"THE COURT: Okay. All right. Well, then that is no longer in existence. We don't have to worry about that one. [¶] The 273(a), the 236, the 12021—I'm not sure about the 22152(a). Are those—is that an impeachable prior felony?
"[PROSECUTOR]: I believe they are, Your Honor.
"THE COURT: All right.
"[DEFENSE COUNSEL]: I don't know about that, Your Honor.
"THE COURT: All right. Well, we'll look at that.
"[DEFENSE COUNSEL]: And I would argue that 2003, 2001, 1998 are too old.
"THE COURT: Is [defendant] going to contest the validity of those priors and have evidence presented, [defense counsel]?
"[DEFENSE COUNSEL]: I don't believe so, no.
"THE COURT: All right then. Well, we'll just bifurcate those, and at the end of the trial on the two—or the charges in this case, we can deal with the admission to those priors."
At the conclusion of the bench trial, the court deferred the verdict and inquired about "the ... validity of the prior convictions." After some discussion, the court determined it would leave them bifurcated pending the verdict. After an almost two-week break in the proceedings, the trial court rendered its verdict on the five counts and the following discussion occurred immediately thereafter.
"THE COURT: [¶] ... [¶] There was an enhancement under 12022—12022.1. [¶] Counsel, I believe that we bifurcated all of the priors—or I can't recall, actually, if those were—I don't think we ever tried the priors.
"[DEFENSE COUNSEL]: Yes. We bifurcated because if he was found not guilty of Count 1 in [Tuolumne Superior Court case No. ]46598—
"THE COURT: Right
"[DEFENSE COUNSEL]: —then the prior prison terms wouldn't count. They would have washed out.
"THE COURT: But the 12022.1 was on—that was a separate case, I believe. The July incident was filed separately. I'm not sure if that—I'm not sure if there was evidence of that presented during the trial, counsel, 12022.1. Counsel recall, or was that reserved as well?
"[PROSECUTOR]: I believe that was reserved, Your Honor.
"[DEFENSE COUNSEL]: Uh ...
"THE COURT: I think it was probably reserved with all the—
"[DEFENSE COUNSEL]: I don't remember, Your Honor.
"THE COURT: —enhancement allegations.
"[DEFENSE COUNSEL]: I know the prison priors were bifurcated, and I don't remember whether the 12022 was proven up.
"THE COURT: Counsel, my notes do not indicate that there was any evidence with respect to the out-on-bail enhancement. [¶] [Prosecutor], do you have anything in your notes that would reflect that—or [defense counsel]?
"[PROSECUTOR]: I do not. But I recall us having some discussions in chambers about how we were going to deal with that, because part of the testimony was why they were there, and part of it was he was out on bail or—and I think the discussion was '[d]on't bring that up'—
"THE COURT: Okay.
"[PROSECUTOR]: —so I took that to mean we were putting that off along with the priors.
"[DEFENSE COUNSEL]: Why would we not bring it up? There is no jury.
"THE COURT: "Let's do this, counsel. [¶] Does [defendant] want to have these priors proved up, [defense counsel]?
"[DEFENSE COUNSEL]: He's going to admit all the prison priors.
"THE COURT: All right. Then I'll take the admission to the prison priors and I will have the court reporter review her record with respect to the discussion we had in chambers with respect to the out-on-bail enhancement, and I'll have [the court reporter] look that up, and I'll put it on calendar for about a week from today to see what the status of that is. If there is no evidence of it and we had no discussion about it, then the prison prior wasn't proved up. If there was some discussion about reserving it, then I will—we'll deal with whether it is going to be proven or not.
"[DEFENSE COUNSEL]: Okay."
Defendant thereafter waived his right to a jury trial and admitted the prior conviction allegations. Several weeks later, the trial court went over the transcript of the bifurcation discussion with the parties, which we summarized above.
"THE COURT: [¶] ... [¶] All right. Counsel, I interpret this as to include the 12021. There was a discussion about the enhancement allegations, and I think the issue was reserved for further testimony. [¶] So, [defense counsel], I will let you tell me how you want to proceed. I will hand you a copy of this so you can read it, too. [¶] ... [¶]
"[DEFENSE COUNSEL]: I would disagree, Your Honor, because we—we are talking about—we were talking about impeachable prior felonies. We were not talking about an out-on-bail enhancement.
"You asked: 'Are you going to contest the validity of those priors and have evidence presented?'
"'I don't believe so, no.'
"'All right. We'll bifurcate.'
"So I don't think—we weren't—I don't remember talking about the 12022.1, the out-on-bail enhancement in addition to those. We were just going to bifurcate on the issue of prior convictions, and I don't—
"THE COURT: "Well, I will admit the transcript is not an abundance of clarity. [¶] [Prosecutor], what is your recollection?
"[PROSECUTOR]: Well, that is what it was, regardless of what my recollection was. [¶] But I would say this, too. During the trial, I was trying to offer evidence of [Cynthia's] statement where she was talking about why—it was during the second incident—why [defendant] came home and she wanted him out, and it had to do with a 1320. [¶] But tied with that was also the out-on-bail enhancement, that he was out on bail, that he wasn't taking, you know, the steps to do that. I was shut down by the Court, you know, 'Don't go there, we still have this 1320 pending.' I took that to mean that, 'Okay, we're going to—' that was more evidence for me that we were going to bifurcate this and do this after the trial, because that would have been evidence, obviously, of the out-on-bail enhancement. [¶] Obviously, the best way to do it is can the Court take judicial notice of this, and that is ultimately what we would have done, and that was evidence of the out-on-bail enhancement that wasn't allowed to come in, which led me to believe we were bifurcating it, as I thought we discussed in chambers.
"THE COURT: [Defense counsel]? [¶] My recollection is that I did prohibit evidence of that, the reason why he was not—why she was upset about him and the things that were pending, as I recall.
"[DEFENSE COUNSEL]: Huh. I have the opposite recollection. I thought that stuff came in.
"THE COURT: I can have—I can have [the court reporter] just look for her notes on that issue when that came up to see what the ruling was and see what evidence was proffered at that time, if you would like me to do that.
"[DEFENSE COUNSEL]: Because I'm trying to think back if there was any evidence presented that would have been sufficient for the Court to—
"THE COURT: I don't recall there being any evidence of this. That is why I raised this.
"[PROSECUTOR]: Well, again, I believe we were bifurcating it and it was going to happen after the trial. That is what happened there. I took that - whether I took that too far, that is what I believed was going to happen, and it was reaffirmed by the fact that I was trying to get into that area and was kind of shut down.
"THE COURT: [Defense counsel], how do you want to proceed? I will look more carefully at it if you want me to do that.
"[DEFENSE COUNSEL]: I don't—I think because it is another two years, I can't just agree that this—that is not my recollection and that is not reflected in the transcript.
"THE COURT: I understand that. I think I should look at the transcript.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: I mean, it is two years. And I can understand why [defendant] doesn't want to just admit to that. [¶] Let me look. And the issue for me is whether I precluded the introduction of evidence based on the understanding that it would be a bifurcated issue, and it would also lead to ... support [the prosecutor's] position that—supporting his belief as well.
"[DEFENSE COUNSEL]: I understand that. [¶] If there is record that you didn't allow him to get into that area in order to prove that up, then
I can understand why you would then allow him to ask you to take judicial notice afterwards.
"THE COURT: I don't recall whose testimony it—was involved at that point. Was it [Cynthia's] testimony?
"[DEFENSE COUNSEL]: I think so.
"[PROSECUTOR]: I think I originally asked—yes. It had to be. And I think I tried to ask whoever interviewed her, which was Deputy Gempler, I believe.
"THE COURT: All right. [¶] We'll look first at [Cynthia's] testimony and then at Deputy Gempler's testimony."
Approximately one week later, the trial court ruled as follows:
"THE COURT: All right. [¶] This was continued for the Court to look at the transcript, if there was one. I mean, the issue in this case—the reason this was continued is that [the prosecutor] and [defense counsel] tried this case before the court, and the question was whether or not there was any evidence of the out-on-bail enhancement—proof of the out-on-bail enhancement, and there was no evidence submitted on that.
"It is [the prosecutor's] position that the Court reserved that, that it bifurcated that along with all of the other prior convictions that had been alleged as to [defendant], whether or not they were true or not, and I think [defendant] ultimately admitted to those prior convictions as enhancements. The question was whether or not [the prosecutor] was misled into believing the Court reserved on the issue of the 12022.1 out-on-bail enhancement, and therefore, he did not put on any evidence of it. [The prosecutor] believed he was precluded from doing that because of an objection that was made, I think in the testimony of Deputy Gempler and the testimony of ...
"[PROSECUTOR]: [Cynthia.]
"THE COURT: ... [Cynthia.] [¶] I looked at the testimony of both [Deputy] Gempler and [Cynthia], and [Cynthia] was allowed to testify that she didn't want him to come home—or that he wanted to come home to take care of the fact that he had a bench warrant out for his arrest. In other words, she was allowed to testify about that incident. What it was—what the bench warrant was for was not clear from the evidence. However, Deputy Gempler did not testify—during his testimony, there was no objection to him testifying about the fact that he was out on bail at the time he was arrested on this offense.
"The transcript of the discussion in chambers about the prior impeachable priors mentions the 1202—mentions the 273a of the Penal Code, the prior 236 of the Penal Code, prior 23152(a) ... of the Vehicle Code, and the 12021. The Court discussed them in terms of them being prior convictions and that we would bifurcate them and deal with them at the conclusion of the evidence in this case—or after the Court made a decision on the primary charges in this case. It is just unclear, is the problem. It is just unclear as to what happened here. [The prosecutor] is under the belief the Court was not going to allow any evidence on that because I reserved ruling on it, and the record is just unclear.
"Since the 12022.1 is discussed in connection with the priors—although it wasn't a prior conviction. It was an allegation. It wasn't a prior conviction. It was discussed in terms of those prior convictions. I'm going to allow [the prosecutor] to put on some evidence about that, the out-on-bail enhancement. I just think every other element was covered, and I see no reason why that wouldn't have been done in the regular presentation of the evidence in this case."
C. Analysis
1. Standard of Review
Trial courts have general authority to bifurcate trial issues pursuant to section 1044, which provides: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (See People v. Hernandez (2004) 33 Cal.4th 1040, 1048; People v. Calderon (1994) 9 Cal.4th 69, 74-75.) There is neither a right to bifurcation of issues nor a right to a unitary trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334-1335.) Rather, "[i]n exercising its discretion under section 1044, a trial court must be impartial and must assure that a defendant is afforded a fair trial. [Citation.] When there is no patent abuse of discretion, a trial court's determinations under section 1044 must be upheld on appeal." (Id. at p. 1334.)
Turning to defendant's argument that the de novo standard of review applies to the trial court's determination in this case, defendant cites no authority directly supporting this proposition and, instead, relies on Escobar v. Flores (2010) 183 Cal.App.4th 737, 748-749 as demonstrative of the situation in which it is appropriate to apply the abuse of discretion standard. Escobar v. Flores involved an international child custody dispute under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11,6701. (Escobar v. Flores, supra, at p. 740.) In that case, the Court of Appeal rejected the mother's argument for application of the de novo standard of review, concluding that "the determination of whether a particular child 'has attained an age and degree of maturity at which it is appropriate to take account of its views' is a factual issue for which deferential appellate review is appropriate." (Id. at pp. 748-749.)
See title 22 United States Code section 9001 et seq.
We find defendant's citation to Escobar v. Flores unpersuasive. Review of a trial court's decision to grant or deny a motion to bifurcate has long been reviewed for abuse of discretion. (People v. Hernandez, supra, 33 Cal.4th at p. 1048; People v. Calderon, supra, 9 Cal.4th at p. 79; accord, People v. Franklin (2016) 248 Cal.App.4th 938, 952; People v. Cline, supra, 60 Cal.App.4th at p. 1334.) In this case, the trial court reviewed the record to determine whether the enhancement had been expressly or impliedly bifurcated, which is a question of fact. Defendant provides no authority for the proposition that, while a trial court's ruling on the bifurcation of an issue is reviewed for abuse of discretion, its review of the record to determine whether an issue was expressly or impliedly bifurcated is reviewed de novo nor are we aware of any. We therefore reject the argument.
2. No Error
a. Discretion to Reopen Case
At the outset, we acknowledge the People's argument that the trial court had broad discretion to reopen the case under section 1094 and defendant's counterargument that the trial court in this case did not rely on its discretion to reopen the case under section 1094. The People cite People v. Riley (2010) 185 Cal.App.4th 754 (Riley) as controlling the disposition here.
After the close of evidence in Riley, the defendant moved for acquittal under section 1118.1 and the prosecutor moved to reopen the case. (Riley, supra, 185 Cal.App.4th at pp. 760-761.) The trial court found that the prosecutor's failure to prove an element of the charge—possession of a controlled substance in a useable amount under section 4573.6—was inadvertent and there was no unfair surprise to the defendant. (Riley, supra, at pp. 762-763.) The court denied the defendant's motion for acquittal, granted the prosecutor's motion to reopen, and permitted the prosecutor to introduce evidence that the marijuana found in the defendant's purse was a useable amount, as rebuttal or alternatively under its authority to reopen the case. (Ibid.)
Section 1118.1 provides: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
The Court of Appeal recognized in Riley that trial courts have "'broad discretion to order a case reopened and allow the introduction of additional evidence,'" taking into consideration "'"the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence." [Citation.]'" (Riley, supra, 185 Cal.App.4th at p. 764; accord, People v. Masters (2016) 62 Cal.4th 1019, 1069; People v. Homick (2012) 55 Cal.4th 816, 881.) "'No error results from granting a request to reopen in the absence of a showing of abuse.'" (Riley, supra, at p. 764; accord, People v. Ardoin (2011) 196 Cal.App.4th 102, 127.) The Court of Appeal affirmed the trial court's ruling, concluding "that section 1118.1 does not place a limitation on the trial court's discretion under sections 1093 and 1094 to permit either party to reopen its case for good cause and when justice so requires." (Riley, supra, at p. 766.)
However, as defendant points out in response, the trial court here did not expressly exercise its discretion to reopen the case under section 1094 after the close of evidence nor did the prosecution request the court to exercise its discretion under section 1094. As discussed next, we find no abuse of discretion in bifurcating the enhancement and, therefore, we need not determine whether in this instance the court also impliedly reopened the case under section 1094 or whether, if so, its exercise of discretion was appropriate at that stage in the proceedings.
We observe that another Court of Appeal recognized, "the appellate court decisions upholding an order allowing the prosecution to reopen its case[, even late in the proceedings,] are legion." (People v. Rodriguez (1984) 152 Cal.App.3d 289, 295; see People v. Masters, supra, 62 Cal.4th at p. 1069 [no abuse of discretion in denying the defendant's motion to reopen case during jury deliberations where evidence sought to be introduced not materially different than evidence already before jury]; People v. Norris (2002) 95 Cal.App.4th 475, 479-480 [no abuse of discretion in vacating acquittal on prior prison term allegation following bifurcated court proceeding and reopening case where the acquittal in reliance on §§ 1118 and 1118.2 was ineffective]; People v. Goss (1992) 7 Cal.App.4th 702, 707-708, abrogation on other grounds recognized in People v. Norris, supra, at pp. 479-480 [no abuse of discretion in reopening case after verdict in court trial to permit prosecutor to introduce evidence of prior conviction, where court had reserved its ruling on the defendant's motion for acquittal brought after prosecution's case-in-chief]; People v. Rodriguez, supra, at pp. 295-296 [no abuse of discretion in reopening case at sentencing to allow prosecutor to introduce evidence of prior convictions where court took issue of priors under submission until probation and sentencing hearing].)
b. Discretion to Bifurcate Enhancement
Although defendant argues the record is clear that the enhancement was not bifurcated, the record itself does not support such a level of certainty. As the trial court acknowledged, the transcript is not a model of clarity, but after reviewing the record and considering the parties' arguments, it ultimately found that the enhancement, although not itself a prior conviction, "was discussed in terms of those prior convictions," the determination of which was bifurcated. This ruling constitutes an abuse of discretion only if it "'falls outside the bounds of reason.'" (People v. Osband (1996) 13 Cal.4th 622, 666; see People v. Franklin, supra, 248 Cal.App.4th at p. 952.) We conclude that it does not.
As well, we reject the People's contention that "[s]ince there is no ... section 12021, the trial court's statement can only be understood as a reference to section 12022.1." (Italics added.) Although the trial court may have inadvertently conflated the enhancement and the prior conviction, the complaint alleged defendant suffered a prior conviction for being a felon in possession of a firearm under former section 12021.
Defendant waived his right to a jury trial in this case and, therefore, the common concern regarding the risk of causing a defendant undue prejudice before the jury was not at play. Nevertheless, the parties agreed to bifurcate the truth of defendant's prior convictions and, like a prior conviction enhancement, "a section 12022.1 enhancement turns on the status of a defendant as a repeat offender, not on what the defendant did when committing the current crime ...." (People v. Walker (2002) 29 Cal.4th 577, 589.) The "enhancement does not punish a defendant for his or her conduct while committing an offense ..., but rather punishes the defendant for his or her status as a repeat offender while on bail ...." (Ibid.) Because proving the on-bail enhancement allegation, like proving the prior conviction enhancement allegations, was not connected to proving the charged offenses, the trial court could have reasonably concluded that although it used the term "prior convictions" at times, the on-bail enhancement allegation was intended to be included within the group of bifurcated prior conviction enhancement allegations.
As well, the prosecutor's representation that he believed the on-bail enhancement was also bifurcated because he was limited in his ability to examine Cynthia on the issue of defendant's outstanding warrant is supported by the record. Cynthia was the first witness to testify and, with respect to the July incident of domestic violence to which the on-bail enhancement was attached, defendant counsel objected when the prosecutor asked Cynthia why defendant had been gone the prior week and the trial court questioned the evidence's relevance. The court then allowed Cynthia to answer the question for the limited purpose of showing why she and defendant were fighting and she responded, "[H]e knew he was facing jail." The prosecutor thereafter asked what defendant was going to turn himself in for and defense counsel again objected. The court permitted Cynthia's answer that defendant "missed his court date" to stand. This exchange supports a reasonable inference that the on-bail enhancement was intended to be bifurcated from trial on the substantive offenses, as the prosecutor believed and the trial court concluded.
The trial court and the prosecutor mistakenly discussed Deputy Gempler's testimony in the context of whether the prosecutor had been limited in his ability to question witnesses about defendant's failure to appear in court. Gempler responded to the second incident of domestic violence in March 2015 and defendant did not fail to appear for his court hearing until June 2015. Deputy Hunt responded to the domestic violence call in July 2015 and the prosecutor did not attempt to question Hunt about whether he knew why defendant had just returned home after being gone for a week. Whether or not Hunt had any knowledge on that issue, his testimony was taken after the prosecutor's attempt to question Cynthia on the issue drew objections.
As we previously recognized, this was a bench trial and some of the considerations relating to whether or not to bifurcate an issue do not apply but it remains that at bottom, in deciding whether or not to bifurcate issues, the trial court must ensure the defendant receives a fair trial. (People v. Hernandez, supra, 33 Cal.4th at pp. 1048-1050; People v. Calderon, supra, 9 Cal.4th at pp. 78-79; People v. Cline, supra, 60 Cal.App.4th at p. 1334). In this case, a decision to bifurcate the on-bail enhancement did not work to deprive defendant of a fair trial and he does not claim otherwise. We recognize that defendant's finer point is the trial court did not bifurcate the enhancement in this case and in concluding it had, it erred, resulting in prejudice to him vis-à-vis his conviction of the enhancement allegation. It was not error for the court to bifurcate the enhancement in the first instance, however, and based on the record in this case, we are not persuaded that the court's determination that the enhancement had been bifurcated along with the prior conviction allegations was "'outside the bounds of reason'" (People v. Osband, supra, 13 Cal.4th at p. 666; see People v. Franklin, supra, 248 Cal.App.4th at p. 952), and therefore a "patent abuse of discretion" (People v. Cline, supra, at p. 1334). Accordingly, we reject defendant's claim of error. Given this determination, we do not reach defendant's alternative arguments relating to double jeopardy.
II. Accuracy of Probation Report
A. Alleged Errors in Probation Report
Turning to the probation report challenge, one of the criteria affecting probation under rule 4.414(b)(5) of the California Rules of Court is "[t]he likely effect of imprisonment on the defendant and his ... dependents ...." As well, one of the circumstances in mitigation under rule 4.423(a)(2) is that "[t]he victim was an initiator of, willing participant in, or aggressor or provoker of the incident ...." Defense counsel argued in the trial court that the probation report should be corrected to include these factors. The court permitted counsel to argue the issues but declined to add the factors to the probation report.
All further references to rules are to the California Rules of Court.
Defendant was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4), and he concedes that inclusion of the aforementioned factors in the probation report would not have changed his sentence. However, citing rules 4.414(b)(5), 4.423(a)(2) and 4.437(e), and People v. Otto (2001) 26 Cal.4th 200, defendant claims the court erred in failing to correct the report as requested because if the probation report is used in future proceedings, its contents will be treated as true.
Section 1203, subdivision (e)(4), provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any ... person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." Although not relevant here, we note that section 1203 was amended effective January 1, 2017, to add a subdivision (l). (Sen. Bill No. 266, approved by Governor, Sept. 27, 2016 (Reg. Sess. 2015-2016) ch. 706, § 1.)
Rule 4.437(e) provides that "[i]n the event the parties dispute the facts on which the conviction rested, the court must conduct a presentence hearing and make appropriate corrections, additions, or deletions in the presentence probation report or order a revised report."
On this same basis, defendant also argues the probation report erroneously includes a conviction that was reversed, fails to include the fact that Cynthia started the December fight, and falsely states that he started the fight. Cognizant "that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal" (People v. Welch (1993) 5 Cal.4th 228, 234-235; accord, People v. Lara (2012) 54 Cal.4th 896, 907; People v. Relkin (2016) 6 Cal.App.5th 1188, 1194-1195), defendant claims his trial counsel's failure to raise these errors below and request corrections constituted ineffective assistance of counsel. He contends "the immediate prejudice from [the] trial court's deficient performance is minimal but he is prejudiced by a probation report that makes his criminal behavior look worse than it was and which might be used against him in future proceedings at a time when it would no longer be possible to correct the report."
The People respond that defendant fails to show the trial court abused its discretion in declining to change the probation report. The People contend defendant did not present evidence establishing any of the purported facts he wanted added and his view of Cynthia as being the initial aggressor "merely reflects [his] interpretation of what the evidence at trial demonstrated." With respect to defendant's ineffective assistance of counsel claim, the People contend that defendant fails to demonstrate any prejudice resulting from counsel's asserted error.
B. Trial Court's Rejection of Correction Requests
1. Standard of Review
"The purpose of a probation report is to assist the sentencing court in determining an appropriate disposition." (People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456, 459, citing People v. Warner (1978) 20 Cal.3d 678, 683; accord, People v. Llamas (1998) 67 Cal.App.4th 35, 40.) A report by a probation officer is required "whenever a person is committed to an institution under the jurisdiction of the Department of Corrections and Rehabilitation" (§ 1203c, subd. (a)(1)), and the report accompanies the defendant upon his commitment to the Department of Corrections and Rehabilitation (§ 1203c, subd. (b); see § 1203, subds. (a), (b)). The required contents of the report, including the facts and circumstances of the crime, are set out in rule 4.411.5(a).
A sentencing or probation hearing "violates due process if it is fundamentally unfair." (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) "'Reliability of the information considered by the court is the key issue in determining fundamental fairness' in this context." (Ibid., quoting People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) "Fundamental fairness demands that [probation] reports be founded on accurate and reliable information. [Citation.] Thus, a party is entitled to respond to adverse information in a probation report, or information that is inaccurate, insufficient or based on unreliable information." (People v. Cardenas (2015) 239 Cal.App.4th 220, 235.)
"[T]he basic evil which should be avoided in probation reports tendered to the court for sentencing purposes is that the reports should not in any way be misleading or inaccurate, should not make reference to arrest records or police contacts without supporting factual information concerning them; and above all should contain accurate and reliable information." (People v. Lutz (1980) 109 Cal.App.3d 489, 497.) On appeal, "it must be presumed that the probation officer fully and fairly performed the duty imposed upon him by section 1203 ...." (People v. Rosenberg (1963) 212 Cal.App.2d 773, 777; accord, People v. Cardenas, supra, 239 Cal.App.4th at p. 235.)
2. No Error
The trial court has the discretion to reject a probation report in whole or in part. (People v. Municipal Court (Lopez), supra, 116 Cal.App.3d at p. 459.) During the sentencing hearing, defendant argued that the trial court should correct the probation report to reflect "the likely effect of imprisonment on [defendant's] dependents and his wife" as a factor favoring probation, and that Cynthia "was an initiator, willing participator in, or aggressor or provoker of the [December] incident," based on her testimony she threw the toolbox at him. The trial court declined to add the information to the probation report, but permitted counsel to argue the issues.
As we have stated, defendant does not argue on appeal that the omissions resulted in prejudice to him with respect to his sentence. Rather, his concern is the probation report's effect on unspecified future proceedings where "its contents would be treated as true." However, defendant fails to persuade us that the omissions he complains of render the probation report factually and materially inaccurate, and we do not find defendant's citation to People v. Otto of assistance to him on this point.
People v. Otto concerned a sexually violent predator commitment proceeding pursuant to Welfare and Institutions Code section 6600. (People v. Otto, supra, 26 Cal.4th at p. 203.) The California Supreme Court was tasked with determining whether the statute permits admission of multiple hearsay that does not fall within any exception and, if so, whether the admission violates due process. (Ibid.) As related to defendant's argument, the court addressed consideration of victims' hearsay statements in presentence reports and specifically discussed probation reports. While People v. Otto provides support for defendant's broader contention that probation reports may be considered in other future proceedings where any material inaccuracies may be prejudicial, the case does not support his more specific claim that here, the trial court abused its discretion is declining his request to add information to the report.
As previously stated, defendant was statutorily ineligible for probation. Rule 4.413(b) provides that "[i]f the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." The court in this case did not find the statutory limitation on probation overcome and, therefore, it was not required to apply the criteria in rule 4.414, defeating defendant's claim that it abused its discretion in failing to add rule 4.414(b)(5) to the probation report.
Even if the court had been required to apply the criteria under rule 4.414, we would find no abuse of discretion. "Relevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise." (Rule 4.409, italics added.) The court allowed defendant to argue the issue at sentencing and nothing further was required.
Moreover, there is a distinction between the inclusion of materially inaccurate information and a complaint that additional information defendant views as favorable was not included. This is not to say that the omission of information can never render a probation report materially inaccurate, but defendant bears the burden of demonstrating error on appeal and he fails to explain how the omission of this particular factor renders the probation report insufficient, inaccurate or unreliable such that he may be harmed by its omission in the future. We note that Cynthia told the probation officer she did not want to see defendant incarcerated because she did not believe it would be beneficial and she would instead like the court to grant him probation with the opportunity to participate in a substance abuse program. This statement is included in the probation report. As well, defendant provided a statement to the probation officer regarding his love for his wife and family, and his desire for drug and alcohol addiction treatment. Defendant acknowledges as much in his reply brief. We think the inclusion of this information in the report more than sufficiently addresses any arguably conceivable harm that might result from the asserted omission of this information.
b. Rule 4.423(a)(2)
As to defendant's desire for inclusion of a statement that Cynthia was the aggressor as a factor in mitigation, the probation report was based on law enforcement reports, which in turn contained defendant's and Cynthia's statements to deputies the night of the crime. As well, defendant's presentencing statement was included in the report. The night of the crime, defendant told deputies that Cynthia had scratched him and his presentencing statement discusses their mutual combat when arguing, but the information that Cynthia attacked defendant first by throwing a toolbox at him was based on her trial testimony and was not an uncontroverted fact. Although Cynthia was found lying unconscious on top of some tools, neither defendant nor Cynthia mentioned the toolbox in their statements, Cynthia did not mention it to her daughter that night, photographs taken at the scene did not show a toolbox, the responding deputy did not recall seeing a toolbox, and defendant had no visible injuries beyond scratches on the back of his neck, which was consistent with his statement that he was scratched.
The court, as the trier of fact, was not required to find Cynthia's trial testimony on this point credible. The court permitted defendant to argue the issue but, under the circumstances, it did not abuse its discretion in declining to add to the probation report an asserted but not conclusively established fact. (See People v. Welch, supra, 5 Cal.4th at pp. 234-235 [offer of proof as to asserted error required].)
C. Ineffective Assistance of Counsel
1. Standard of Review
Finally, we also reject defendant's claim that trial counsel's failure to raise two additional errors deprived him of effective assistance of counsel. "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance '"'"fell below an objective standard of reasonableness ... under prevailing professional norms."'"' (People v. Lopez (2008) 42 Cal.4th 960, 966.) To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833.)" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
"On appeal, we do not second-guess trial counsel's reasonable tactical decisions." (People v. Lucas (2014) 60 Cal.4th 153, 278, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "[D]efendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel, supra, 2 Cal.5th at p. 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.)
2. No Error
Defendant faults trial counsel for failing to object to the probation report's inclusion of his conviction for violating Health and Safety Code section 11359 because the conviction was later reversed. He argues, "The report may well be used to prove that [defendant's] conviction for violating Health and Safety Code section 11359 is still valid." This assertion mischaracterizes the probation report. While the report lists defendant's 2012 conviction in his criminal history, as defendant states, it immediately thereafter reflects that the conviction was reversed on appeal. Given that the report clearly reflects the reversal of this conviction, there was no material error of fact requiring correction.
Defendant also claims the probation report fails to reflect that Cynthia started the fight by throwing his tools at him and it falsely states he started the fight. Defendant argues, "The report may well be used to make [defendant] look to be a liar if he ever claims that [Cynthia] started the fight by throwing his tools at him, even though [Cynthia] did not dispute that fact." This assertion, too, lacks merit.
For the reasons previously discussed, defendant had no entitlement to a correction reflecting that Cynthia started the fight by throwing his tools at him; that purported fact was not conclusively established by the evidence and, therefore, its omission from the probation report did not render the report factually erroneous. Moreover, we have reviewed the report and find no support for defendant's assertion that it falsely states he started the fight. The report instead states, "[defendant] stated the fight started with the couple arguing in the garage and escalated when [Cynthia] reportedly scratched his back and slapped his face, prompting him to 'put her down by the throat.'" (Italics added.) Even if, for the sake of argument, we accepted that it would have been error to state that defendant started the fight, the report does not contain such a statement and, therefore, there was no error of fact requiring correction.
In a footnote in his opening brief, defendant also faults counsel for failing to make the same argument regarding the second and third domestic violence incidents, although defendant concludes it would have been futile to object and he does not pursue the issue as part of his ineffective assistance of counsel claim. The conclusion we reached with respect to Cynthia's testimony regarding the toolbox applies equally here. There was evidence both that Cynthia pushed defendant first during the second incident and that defendant ambushed Cynthia when she returned from Spencer's mobile home; the trial court was not required to credit the version most favorable to defendant. As to the third incident, Cynthia specifically testified that although she and defendant had been arguing on and off that day, she did not hit defendant first. We are unable to discern what evidence supports defendant's assertion that Cynthia was the initial aggressor in the third incident, unless defendant is suggesting that a verbal comment preceding a closed fist punch to the head rendering the victim unconscious constitutes initiation or provocation. If so, we do not agree with this characterization. --------
For these reasons, we reject defendant's claim that trial counsel erred in failing to raise these additional objections to the probation report. Because we do not agree counsel's performance was deficient, we do not reach the prejudice prong.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SNAUFFER, J.