Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF129711 Robert W. Armstrong, (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
A jury found defendant guilty of willful infliction of corporal injury on a former cohabitant, having been previously convicted of the same offense (Pen. Code, § 273.5, subd. (e)(1), count 1), as well as residential burglary (Pen. Code, § 459), after which he admitted four prior prison term allegations. (Pen. Code, § 667.5, subd. (b).) He appeals the convictions and sentence, contending (1) the trial court erred in failing to instruct on the right to eject a trespasser from real property; (2) trial counsel was ineffective for failing to argue that the prejudicial effect of three prior incidents of domestic violence outweighed their probative value; and (3) concurrent terms for residential burglary and spousal abuse violated the rule prohibiting multiple punishment. (Pen. Code, § 654.)
Respondent concedes the sentencing error, and we reject the defendant’s remaining contentions. We affirm the convictions and direct that the sentence be modified.
At the preliminary hearing and at trial, the victim, Jamie Cloutier (Cloutier), recanted her accusations that defendant committed any acts of domestic violence, testifying, instead, that she was the aggressor and that the fight took place at defendant’s residence. Because we view the evidence in the light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we assume the jury based its verdict on the victim’s pretrial statements to police shortly after the incident, and refer to those. Those statements were admitted to rebut the victim’s trial testimony.
Defendant and Cloutier had an on-again, off-again dating relationship and, at trial, Cloutier denied that defendant had broken into her house or that any incident took place there. She acknowledged she had lived with defendant for a period of time prior to November 2005. Since that time, Cloutier no longer spoke to defendant, no longer loved him, and was no longer romantically involved with him. On April 15, 2006, Cloutier lived by herself.
On that date, Riverside Police Officer Brent Fast received a call from the defendant and responded to his residence. Defendant had a bloody nose and scratches on his face, and he informed the officer that Cloutier had taken his car. Officer Fast then went to Cloutier’s residence to investigate the report. Cloutier answered the door wrapped in a towel and appeared to have been crying. She had injuries to her lips and scratches on her face. Also, the interior of her residence looked as though a struggle or altercation had taken place.
In the taped interview, Cloutier stated defendant had forcibly entered her home through the rear bedroom door, and ran across her bed. He grabbed her by the hair and dragged her from her bed. Defendant attacked her, at one point pushing her down and pushed her head against the floor in the kitchen, causing a lump on her head and an injury to her mouth. He also tried to suffocate her by putting his hand over her mouth. Cloutier showed the officer a pink sweater with blood on it. Officer Fast also observed, among other things, that a latch and wood splinters from the bedroom door were lying on the ground near the door, and there was a distinct waffle-patterned shoe print on the bedspread, consistent with the soles of defendant’s shoes. Although unclear from the evidence, it appears the defendant went to Cloutier’s residence and assaulted her in retaliation for an incident earlier that date in which Cloutier had gone to the defendant’s residence and taken his car without permission, parking it in her driveway and blocking it in with her own car.
At trial, Cloutier recanted. She claimed she went to defendant’s home and attacked him after consuming large quantities of alcohol. She testified she entered defendant’s room while he was asleep, and dragged him out of bed by his hair. She dragged the defendant all the way into the front yard, hitting him repeatedly, and knocking out his front tooth. In the front yard, defendant told her to leave and get off his property, but defendant did not hit her back. Cloutier took defendant’s keys and later took his car. When she returned to her residence, she parked defendant’s car in the driveway, and parked her own car behind it, blocking his car in. When the police arrived, the defendant’s car was, indeed, parked in Cloutier’s driveway. Cloutier testified she fabricated the version she told the police to get the defendant into trouble because she knew he had been in trouble for domestic violence in the past.
Defendant was subsequently charged with committing corporal injury on a former cohabitant, having been previously committed of the same offense (Pen. Code, § 273.5, subd. (e)(1)), and residential burglary (Pen. Code, § 459), as well as five prior prison terms. (Pen. Code, § 667.5, subd. (b).) Evidence of defendant’s prior instances of domestic violence was introduced. The first pertained to an incident that occurred in 2005, involving Cloutier. The second incident occurred in 2000, involving a different former girlfriend. The third prior incident occurred in 1997, and involved another former girlfriend, Nadine Laporte.
Following presentation of the evidence, the jury returned with guilty verdicts on both charges. After the verdict, defendant admitted four of the prison prior allegations after the prosecutor dismissed one of the priors.
2. Discussion
A. The Court Did Not Err in Refusing to Instruct on the Right to Eject a Trespasser from Real Property.
Defendant argues he was entitled to an instruction on the right of a land owner to use reasonable force to eject a trespasser. (Judicial Council of Cal., Criminal Jury Instns. (2007-2008) CALCRIM No. 3475.) The defense theory related to the trial version of the incident in which Cloutier testified she went to defendant’s residence, assaulted him, and he ordered her to leave. The trial court refused to give the instruction because Cloutier had ejected herself. We agree.
A trial court has a duty to instruct on the law applicable to the facts of the case and a defendant has a right to an instruction that pinpoints the theory of the defense. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) However, a trial court’s duty to instruct on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of the defense. (People v. Barton (1995) 12 Cal.4th 186, 195.) The trial court need not instruct on a defense when the evidence is minimal, that is, it is not substantial enough to merit consideration by the jury. (People v. Roldan (2005) 35 Cal.4th 646, 716.)
The requested instruction, CALCRIM No. 3475, relates to the right of an owner or a lawful occupant of property to use reasonable force to eject a trespasser, an affirmative defense. (People v. Corlett (1944) 67 Cal.App.2d 33, 51.) The defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.) By its terms, the instruction refers to the need to use reasonable force to make the trespasser leave. (CALCRIM No. 3475.)
We have found no cases where the defense arose from circumstances where the evidence showed that the trespasser was ordered to leave, and the trespasser left without the use of force by the defendant. The authorities relied upon by defendant relate to situations in which the defendant used force to accomplish the ejectment of the trespasser, so they are inapposite. In this case, the evidence showed the defendant did not use force to make the trespasser, Cloutier, leave his residence; he told her to leave, and she left without defendant using any force. The court was not required to give the instruction.
Defendant asserts the court must give a self-defense instruction, when requested, when substantial evidence supports it, and when it is consistent with the defendant’s theory of the case. Here, the trial court did give a self-defense instruction, as well as an instruction on the right to defend real or personal property. It was not required to instruct the jury on the right to eject a trespasser in the absence of evidence to support such a defense. There was no error.
B. Defense Counsel Was Not Ineffective For Failing to Specifically Object to the Domestic Violence Propensity Evidence on Section 352 Grounds Where the Court Weighed the Probity of the Incidents Against the Potential for Undue Prejudice on Its Own.
Defendant contends that trial counsel was ineffective for failing to argue that the prejudicial effect of the three prior uncharged incidents of domestic violence outweighed their probative value. (Evid. Code, § 352.) We disagree.
In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is admissible, subject to certain exceptions. (Evid. Code, § 1109, subd. (a)(1).) The admissibility of evidence of domestic violence propensity is limited by Evidence Code section 352, which provides trial courts with broad discretion in weighing the probative value of proffered evidence against its prejudicial effect. (Evid. Code, § 352; see also, People v. Morton (2008) 159 Cal.App.4th 239, 245-246.)
Defendant complains that his attorney seemed unaware of the existence of a challenge to the introduction of the evidence. To demonstrate that his right to effective assistance of counsel was violated, defendant must satisfy a two-pronged test: He must show (1) performance below an objective standard of reasonableness by his attorney, and (2) prejudice sufficient to establish a reasonable probability he would have obtained a more favorable result in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
As a general rule, the failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. (People v. Kelly (1992) 1 Cal.4th 495, 520.) A defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Jimenez (1992) 8 Cal.App.4th 391, 397.) Where the record sheds no light on why counsel acted in the manner challenged, we will affirm unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation for the action. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
The comments of counsel do suggest he believed admission of the propensity evidence pursuant to Evidence Code section 1109 was a foregone conclusion, but the record is silent as to whether he understood the interplay of Evidence Code section 352’s balancing test with policies permitting admission of propensity evidence. We do not need to engage in a lengthy discussion of the admissibility of the prior acts because even if counsel erred in failing to object, or invoke Evidence Code section 352 by an express objection or request, the trial court, on its own, performed the necessary weighing of considerations and made a determination that the probative value was not outweighed by any potential for prejudice.
We do not see where an express objection by defense counsel would have changed the manner in which the court balanced the probative value against potential prejudice, or the outcome of the trial court’s exercise of discretion. There is nothing in the record to show the existence of additional factors which should have been weighed by the court pursuant to Evidence Code section 352, had counsel raised them. Without a record of these considerations, there can be no finding of prejudice under the second prong of Strickland, even if we were to find counsel erred in failing to object.
Because the court properly exercised its discretion in admitting the evidence of defendant’s prior acts of domestic violence (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125), balancing the probative value of the prior incidents against their potential for prejudice despite the lack of an express objection by trial counsel, there was no violation of defendant’s right to effective assistance of counsel.
C. The Sentence is Modified to Correct Concurrent Terms for Burglary and Corporal Injury to a Former Cohabitant.
Defendant contends, and respondent agrees that the trial court should have stayed defendant’s sentence for count 1 (corporal injury to former cohabitant), rather than ordering it to run concurrently with count 2 (burglary). Penal Code section 654 precludes a court from imposing multiple punishment for a single course of conduct that violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial court’s comments reveal it felt the burglary was based on an entry to engage in the conduct alleged in count 1, the corporal injury to a former cohabitant charge. Consequently, we order the sentence for count 1 to be modified to reflect that the term for count 1 is stayed.
D. The Sentence is Remanded to Permit the Court to Either Strike or Impose the Two Prison Priors.
Although not raised by either party, the record discloses an additional error relating to the judgment staying two of the prison priors. In pronouncing judgment, the trial court found that the mitigating circumstances balanced out the aggravating circumstances, and imposed the middle term of four years for the burglary, as the base term. As to the four enhancements for prior prison terms, the court imposed one year each for two of the prior prison terms, and ordered them to run consecutively to the base term. The terms for the remaining two enhancements were stayed, according to the oral pronouncement of judgment. The clerk’s minutes indicate that the terms for those two prior convictions were ordered to run concurrent to the sentence imposed. Both are unauthorized.
Penal Code section 667.5, subdivision (b), provides that the court shall impose a one-year term for each prior separate prison term served for any felony, where the new offense is any felony for which a prison sentence is imposed. The use of the word “shall” means that imposition of the enhancements is mandatory once the prior prison terms are found true; a trial court may not stay the one-year enhancements. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Nor may a court impose concurrent sentences for the prison priors. (People v. Savedra (1993) 15 Cal.App.4th 738, 747-748.)
The trial court did not have the authority to stay the sentence on the two prison priors, or to order that the enhancements run concurrent with the sentence. It was required to either impose and execute one-year sentences, or dismiss (strike) those enhancements. (People v. Fielder (2007) 154 Cal.App.4th 712, 714, fn. 3; see also, People v. Campbell (1999) 76 Cal.App.4th 305, 311.)
Ordinarily, if the court had listed reasons for not imposing the two stayed enhancements, we could imply the trial court intended to strike the two enhancements. (See People v. Langston, supra, 33 Cal.4th at p. 1241.) However, a trial court is required to provide a statement of reasons for using its discretion to strike a mandatory prison prior. (Pen. Code, § 1385, subd. (a); People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Because we cannot assume the reasons for striking prison prior enhancements, we must remand the case to the lower court with directions to exercise its discretion to either strike or impose the two prior prison term enhancements.
3. Disposition
The case is remanded with directions to strike or impose prior prison term enhancements, numbered 3 and 5, and to amend the sentencing minutes and abstract of judgment to reflect its decision. The trial court is also directed to stay the concurrent term for the conviction of corporal injury to a former cohabitant. (Pen. Code, § 273.5, subd. (e)(1), count 1.) In all other respects, the judgment is affirmed.
We concur: McKinster Acting, P. J., Miller J.