Opinion
2d Crim. No. B225267 Super. Ct. No. 2009031232
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. TYRONE ANTHONY TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Ventura County
Tyrone Anthony Taylor appeals his conviction, by jury, of corporal injury to a spouse or cohabitant. (Pen. Code, § 273.5, subd. (a).) Appellant admitted to having been convicted of the same offense within the previous seven years (§ 273.5, subd. (e)), and to having suffered a prior strike conviction in 2008, for attempting to dissuade a witness. (§§ 136.1, subd. (b)(1); 667, subd. (c)(1), (e)(1); 1170.12, subd. (a)(1), (c)(1).) Both the 2008 case and the current matter involve the same victim. The trial court sentenced appellant, as a second strike offender, to a total term in state prison of six years. He contends the trial court erred when it refused to instruct on spousal battery (§ 243, subd. (e)), as a lesser included offense of corporal injury, that he received ineffective assistance from his defense counsel at trial because counsel failed to object to portions of the prosecutor's closing argument, that the cumulative effect of these two errors was prejudicial and that his sentence is incorrect because his prior conviction does not qualify as a "strike." We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
In the early morning hours of July 19, 2009, Crystal Arreola reported to a Port Hueneme police officer that appellant, her former long-time boyfriend, had beaten her. Crystal reported that, after attending a family party that evening, she went to appellant's apartment to talk to him. She became upset when he didn't want to see her and started walking back toward her home. Appellant followed her outside. They argued. He pushed her a few times, then put his arm around her neck and dragged her into a nearby housing complex. There, appellant pushed her to the cement sidewalk and struck her three times in the head with a closed fist. Appellant pushed her several more times, each time Crystal tried to get up and get away from him. He finally left the area and she began walking the neighborhood, looking for a telephone. Photographs taken of Crystal at the time of her report showed bumps on her forehead and a scratch on her neck.
Crystal walked around until she came upon a resident, Cyndi Aguirre, who allowed her to use a telephone to call 911. Crystal explained to Aguirre that she and her ex had "gotten into it." She was crying and said that she was embarrassed to ask for help. Crystal asked Cyndi if she had something on her forehead and neck. Cyndi saw a scratch on the side of Crystal's neck and a bump on her forehead. Crystal said she didn't know whether her neck was injured when appellant punched her, or when he caused her to fall into some bushes.
At appellant's preliminary hearing, Crystal testified that appellant struck her once with a closed fist. In the week before trial, Crystal recanted both her initial report of the incident and her preliminary hearing testimony. She completed a form requesting that the case be dismissed, and she told the prosecutor that her initial police report was false. Crystal was given immunity from prosecution for the offense of filing a false police report. At trial, she testified that she made the false report because she was angry with appellant for flirting with other women and for refusing to reunite with her. She testified that she did not know how she sustained the bump on her forehead. She had been drinking that night, she testified, which might have caused her to fall down and hit her forehead. According to Crystal's trial testimony, the two traded punches, but appellant never grabbed her by the neck, push, hit or punched her.
Discussion
Lesser Included Offense Instruction
Appellant contends the trial court erred when it failed to instruct the jury on spousal battery (§ 243, subd. (e), as a lesser included offense of the charged offense, corporal injury to a spouse or cohabitant. (§ 273.5, subd. (a).) A violation of section 273.5 requires proof that the defendant willfully inflicted a physical injury on the victim and that the injury, however minor, was caused by the direct application of physical force. (CALCRIM No. 840 (rev. 2007).) Spousal battery is a lesser included offense of corporal injury to a spouse. (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) It differs from the charged offense in that it does not require evidence of an injury; any willful or unlawful touching done in a harmful or offensive manner will suffice. (CALCRIM No. 841 (rev. 2007); People v. Myers (1998) 61 Cal.App.4th 328, 335.)
The trial court must instruct, sua sponte, on a lesser included offense "if the evidence 'raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]' " (People v. Lopez (1998) 19 Cal.4th 282, 287-288, quoting People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Thus, the trial court has a duty to instruct sua sponte on a lesser included offense if there was evidence which, if accepted by the trier of fact, would absolve appellant from guilt of the greater offense, but not the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871.)
Here, there was no such evidence. Appellant's defense -- based on Crystal's testimony recanting her original statement -- left the jury with two choices. It could credit Crystal's initial statement and preliminary hearing testimony and conclude that appellant pushed her to the ground and hit her in the head with a closed fist, causing Crystal to develop a swollen forehead. Alternatively, the jury could credit Crystal's trial testimony and find that appellant did notgrab, hit or punch her at all. Because Crystal denied that appellant ever hit her that night, there was no evidence to support the claim that appellant committed a battery on Crystal but did not cause her to suffer a physical injury. As a consequence, the trial court had no duty to instruct on the lesser included offense of spousal battery. (See, e.g., People v. Hamlin (2009) 170 Cal.App.4th 1412, 1458.)
At oral argument, appellant's counsel contended that the jury could have found appellant guilty of simple battery based on Crystal's testimony that appellant pushed her. Crystal testified that she pushed appellant and he pushed her back. She denied falling, being injured, or even being offended by the push. To the contrary, Crystal testified that she did not know how she ended up on the ground, but that she may have tripped on some plants or grass. She could not remember whether she tripped before or after appellant pushed her and she consistently denied having been punched, hit or scratched by appellant. This testimony does not describe even the minimal offensive touching required to constitute a battery and, accordingly, did not provide the basis for a jury instruction on battery as a lesser included offense of the charged crime. (People v. Myers, supra, 61 Cal.App.4th at p. 335.)
Ineffective Assistance of Counsel
In closing argument, the prosecutor argued that Crystal's trial testimony was not credible because it was inconsistent with her original statement and there was no other reasonable explanation for her injuries. The prosecutor also explained that Crystal had been granted immunity from prosecution for filing a false police report so that she would not be able to avoid testifying by asserting her right against self-incrimination. "So immunity was forced upon her saying, 'Fine. You're not going to be prosecuted for what is technically a crime. Let's go get up on the stand and say your piece, say what you're gonna say.' And that's what happened. [¶] There is no belief by the prosecution that she actually made a false report. If there was, we couldn't be here. If there was a belief that she really did lie, this case would not be in front of you today."
Appellant contends he received ineffective assistance of counsel at trial because his counsel did not object to the prosecutor's statement that she did not believe Crystal made a false police report. We are not persuaded.
A prosecutor's improper remarks can " ' "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Frye (1998) 18 Cal.4th 894, 969, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial." (Id. at p. 971.) Prosecutorial assurances of honesty or reliability that are based on evidence in the record, however, cannot be characterized as improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757.) A prosecutor may properly rely "on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief[,]" to support an argument relating to the credibility or veracity of a witness. (Id.)
Appellant forfeited appellate review of his prosecutorial misconduct claim because his defense counsel did not object to the prosecutor's statements. (People v. Stewart (2004) 33 Cal.4th 425, 502.) He contends instead that he received ineffective assistance of counsel at trial because counsel did not object to the prosecutor's statement.
To demonstrate that he received ineffective assistance of counsel at trial, appellant has the burden to show first that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and second that he was prejudiced by counsel's unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Weaver (2001) 26 Cal.4th 876, 925.) Prejudice is shown where there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to appellant. (Strickland, supra, 466 U.S. at p. 687.) In examining an ineffective assistance claim, we accord great deference to counsel's reasonable tactical decisions, " ' "and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' " (People v. Weaver, supra, 26 Cal.4th at p. 925.) We will not second guess counsel's strategic choices and where, as is usually the case, the reasons for counsel's decisions do not appear in the record, "we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926.)
Appellant has failed to demonstrate that his counsel was incompetent. Counsel's failure to object does not establish his incompetence because the prosecutor's comment was based on evidence in the record and was not, therefore, improper "vouching." The prosecutor argued that Crystal received immunity from prosecution for filing a false police report because "there is no belief by the prosecution that she actually made a false report." There was no such belief, the prosecutor explained, because Crystal's initial report was the only version of events that could explain her injuries. Crystal's clothing showed no evidence of a fall, she did not have defensive wounds from trying to break a fall, she did not tell Cyndi Aguirre or the responding police officer that she was injured in a fall, and she could not describe the circumstances surrounding the fall in any detail. In urging the jury to reject Crystal's claim that she was injured in a fall, the prosecutor argued: "Why couldn't [Crystal] sit up here yesterday and say, 'This is how I sustained the injury'? Because there's no other reasonable explanation except for what she told the police officer: that the defendant punched her and she got a knot on her forehead." This argument is based on then evidence, and not on matters outside the record. Accordingly, it did not constitute improper vouching. Defense counsel was not incompetent for failing to object to it.
Cumulative Prejudice
Appellant contends these errors resulted in "cumulative prejudice." We have found no error, and accordingly can discern no cumulative prejudice. (People v. Lynch (2010) 50 Cal.4th 693, 767; People v. Williams (2010) 49 Cal.4th 405, 471.)
Sentencing Error
Appellant was sentenced as a second strike offender based on his prior conviction of violating section 136.1, subdivision (b)(1) by attempting, during a tape-recorded jail house telephone call, to dissuade Crystal from testifying against him in a prior domestic violence case. He contends the trial court erred in sentencing him as a second strike offender because his prior conviction should not be deemed a "serious felony" within the meaning of section 1192.7, subdivision (c)(37). We are not persuaded.
Section 1170.12, subdivision (b) (1) defines a prior felony conviction for purposes of the Three Strikes Law as, "Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Section 1192.7, subdivision (c)(37) includes within the definition of a serious felony, "intimidation of victims or witnesses, in violation of section 136.1[.]"
Section 136.1 is entitled, "Intimidation of witnesses and victims," but none of the specific offenses defined in the statute requires proof of "intimidation" as a necessary element of the offense. For example, section 136.1, subdivision (b)(1), the offense of which appellant was convicted, requires proof of an "attempt[]to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from . . . :: [¶] Making any report of that victimization to any peace officer or state or local law enforcement officer . . . ." Appellant committed the offense during a tape recorded telephone call he made to Crystal while he was in jail, awaiting trial in an earlier case in which he was accused of having kidnapped her. Transcripts of the conversation support appellant's claim that he attempted to dissuade Crystal from testifying by appealing to her emotions, rather than by threatening to harm her.
For example, appellant repeatedly begs Crystal to take back her prior statements. He tells her, "I miss you, I love you, I swear, like after this, after I get out of this -- after I get out of jail, this time I want to marry you and everything, I swear. I'm takin' this one serious." Appellant tells Crystal that being in jail is "killing" him and says that she has to "go drop those charges" because "we love each other and our relationship's not gonna end like this, babe, you know what I mean." Later, he tells her, "those charges gotta get dropped, you gotta tell 'em like, you know what I mean, you were just mad or something, babe. I don't want to be in here long, babe, really. If you love me, you'll do that for me. How are you gonna have your loved one in jail like this, babe?"
Appellant contends his prior conviction should not be counted as a strike because his offense did not involve "intimidation" of a victim as specified in section 1192.7, subdivision (c)(37). People v. Neely (2005) 124 Cal.App.4th 1258, rejected a similar claim. There, the appellant contended his prior conviction of violating section 136.1, subdivision (a)(2) should not qualify as a serious felony under section 1192.7, subdivision (c)(37), because intimidation was not a necessary element of the offense. The Court of Appeal noted that none of the offenses defined in section 136.1 "includes 'intimidation' as an element of the offense." (Id. at p. 1266.) It concluded that, "the phrase 'intimidation of victims or witnesses' in Penal Code section 1192.7, subdivision (c)(37) is merely descriptive of the offenses set forth in Penal Code section 136.1 and was not intended to limit a serious felony to any particular subset of Penal Code section 136.1. Accordingly, we conclude the statutory language is susceptible of only one reasonable construction: all felony violations of Penal Code section 136.1 are serious felonies." (Id.)
When the appellant in Neely, was convicted, section 136.1, subdivision (a)(2) prohibited "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (People v. Neely, supra, 124 Cal.App.4th at p. 1264.)
Appellant urges us to reject this analysis based on the "rule of lenity," under which a statutory ambiguity is resolved by adopting the construction that is more favorable to the defendant. (People v. Canty (2004) 32 Cal.4th 1266, 1277.) We decline. Like the court in Neely, supra, we conclude that section 1192.7, subdivision (c)(37) refers to the unofficial title of section 136.1 and evinces an intent to include every felony offense defined by the statute within the definition of a serious felony. In addition, we note "that such a construction is also consistent with the intent of the voters to expand the list of serious felonies and make them subject to increased penalties." (People v. Neely, supra, 124 Cal.App.4th at p. 1268.)
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
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YEGAN, J.
We concur:
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GILBERT, P.J.
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PERREN, J.
Kevin G. De Noce, Judge
Superior Court County of Ventura
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.