Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR120501
Pollak, Acting P. J.
After a jury trial, Jeffrey Dewayne Washington was convicted of inflicting corporal injury on a cohabitant, assault by means of force likely to cause great bodily injury, and making criminal threats, as felony offenses, arising from an incident involving his ex-wife Joy Deibert. (Pen. Code, §§ 245, subd. (a)(1), 273.5, subd. (a), 422.) At a bench trial, the court found defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to an aggregate term of six years eight months, consisting of the middle term of three years for inflicting corporal injury on a cohabitant and consecutive terms of one year (one-third the middle term) for assault, eight months (one-third the middle term) for criminal threats, and one year for each prior prison term enhancement.
All further statutory references are to the Penal Code.
On appeal, defendant argues his assault conviction should be reversed because his trial counsel failed to object to the prosecutor’s request to amend the information to include that offense. He also contends that the trial court abused its discretion in imposing consecutive terms and in failing to treat the felony convictions as misdemeanors for sentencing purposes. We conclude there is no merit to these arguments and shall affirm.
Defendant raises no issues regarding his conviction for misdemeanor battery arising from an incident involving J.C., for which he was sentenced to a concurrent term of one year in county jail.
FACTUAL AND PROCEDURAL BACKGROUND
In July of 2004, defendant and Deibert began a relationship and lived together in various places until April 2005. The charges against defendant arise from an incident on February 11, 2005, at which time Deibert was five months pregnant with defendant’s child. Deibert also had a seven-year-old son from another relationship.
According to evidence presented at trial, at about 5:00 p.m. on the day of the incident, defendant, Deibert, and Deibert’s son left a restaurant in defendant’s car. Deibert was in the front passenger seat and her son sat in the back seat. Inside the car, defendant began arguing with Deibert because she was “running” her mouth and was not “sticking to the schedule.” Defendant then hit Deibert. At some point, defendant stopped the car. Deibert ran from the car to a nearby business. Defendant followed her, “snatched” her arm and hair and said, “Get in the fucking car,” “don’t make me do this in front of everybody.”
Defendant dragged Deibert back to the car, and they drove to another street. Inside the car, defendant struck Deibert with his hand on the left side of her jaw. At trial, Deibert confirmed that in her earlier statement to the police she had written that defendant “close-fisted back handed me on the left side of the jaw.” She had so described the incident because that was the way it felt as a consequence “of the force” defendant used and “how hard it was. It felt like he close-fist hit me.” At trial, Deibert also testified that she did not recall whether defendant hit her with an open slap or a closed fist. Nor was Deibert able to recall the manner in which defendant’s hand hit her face; she recalled only “[t]he feeling, the force, the hurt.” The blow to her jaw caused her teeth to align differently, a condition that still existed at the time of trial about 20 months after the incident. Deibert knew her jaw was injured based upon the force defendant used to hit her. At the time of the incident, Deibert responded by telling defendant that she could not believe he struck her, he had just “messed up” her jaw, and she needed to go to the hospital.
They did not, however, go to a hospital. Defendant drove to a park and told Deibert’s son to leave the car and play in the park. After the child left, defendant and Deibert continued to argue. Defendant said it was not over until he said it was and that he was going to “beat the shit out of” her and “kill” her. Deibert was afraid and thought that defendant meant what he said. Deibert’s child returned to the car and they drove to a gas station. When defendant went inside to buy a drink, Deibert took her son and ran to a grocery store where she told the manager what had happened. The police arrived about 30-45 minutes later.
The day after the incident, Deibert saw defendant but she was no longer afraid of him. The day before and the day after the incident defendant was acting normally. Before the February 11 incident, Deibert was fearful of defendant because they fought, argued and yelled “like everybody else,” but not because he had previously hit her. She believed the February 11 incident had been “blown all out of proportion.”
Defendant was arrested in April 2005. Deibert later married defendant, had his child, and then divorced him about a month before the October 2006 trial. Five days after the February 11 incident, and possibly on another occasion in 2005, Deibert wrote the prosecutor requesting that he not pursue any criminal charges against defendant because she believed he needed counseling and medication to deal with the reasons for his actions on February 11.
Defendant testified that in February of 2005, he was drinking large quantities of alcohol, using methamphetamine, and smoking a lot of marijuana. He was also taking prescribed drugs, which made him feel “outgoing” and brought his mood up a little bit, while some drugs “knocked him down.” A few days after the February 11 incident, he stopped drinking alcohol and taking drugs. However, he could not recall everything that happened before the drugs were out of his system.
Defendant recalled “bits and pieces” of what occurred on February 11. He was “really out of control that day,” and if Deibert said something happened, then it happened and he was not going to deny it. He had no difficulty driving his car. While driving, he and Deibert argued about things, including females and specifically another woman. He stopped the car and both he and Deibert got out. After they returned to the car, they were still arguing but he did not recall the nature of the argument. He went to a gas station and when he returned to the car, Deibert was gone. Defendant drove back to his residence and saw Deibert the next day. He did not remember hitting Deibert, grabbing her arm hard enough to cause bruises, telling her “don’t make me do this in front of everyone,” putting Deibert back into the car, or driving to the park where his stepson got out to play.
DISCUSSION
I. Defendant Was Not Denied Effective Assistance of Trial Counsel
A. Relevant Facts
Defendant was initially charged by complaint with several felony offenses, including battery with serious bodily injury (§ 243, subd. (d)) based upon his striking Deibert’s jaw while they were in his car. After the preliminary examination, the magistrate held defendant to answer for misdemeanor battery after concluding the evidence did not reach “the level of credibility and sufficient evidence to establish great bodily injury.” The magistrate reduced the felony battery charge to simple battery as a misdemeanor.
The prosecutor initially filed an information charging defendant with felony battery (§ 243, subd. (d)). On the first day of trial, the prosecutor requested permission to dismiss the battery charge and add the felony charge of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), on the ground the evidence at the preliminary examination supported only the latter offense. The prosecutor noted the amendment lowered “the potential impact of the charges” because a conviction for battery would be a strike under the Three Strikes Law while a conviction for assault is not a strike unless the defendant personally inflicts great bodily injury (§§ 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c)(8); see People v. Banuelos (2005) 130 Cal.App.4th 601, 605).
Defendant’s attorney objected to the amendment on the ground that she was prepared for trial on the pending charges and that it would be prejudicial to allow the amendment and possibly require her to change her defense strategy. The court rejected the contention that the request to amend was untimely. Because the amendment would result in the dismissal of a strike offense and there was no contention that the new assault offense was not based upon evidence presented at the preliminary examination, the court’s only concern was whether defendant would be prejudiced by the amendment. After further discussion, the court asked counsel if it were possible to agree on the counts that should be included in the amended information. Following an off-the-record discussion between defendant and his attorney, defense counsel advised the court that defendant was “okay with the amendment” to add the assault charge. The court granted the attorney’s request to “voir dire” defendant on the record. In response to counsel’s questions, defendant acknowledged his understanding of the prosecutor’s request and agreed to the amendment. After the attorney concluded her questioning, the court asked if the defense withdrew its objection to the request to amend the information. Defense counsel replied, “That is my understanding, yes.”
B. Analysis
Defendant argues he was denied effective assistance of counsel because his attorney failed to pursue her objection to the request to amend the information and essentially left the decision to object up to him, and he was not equipped to make the determination. The contention is unavailing.
“In order to prevail on a claim his counsel was ineffective for failure to object to the amendment, [defendant] must demonstrate counsel’s performance was deficient under an objective standard of responsibility and that there is a reasonable probability that but for counsel’s error, a determination more favorable to him would have resulted. [Citation.] If the record does not reflect why defense counsel acted, or failed to act, in the manner challenged, the case will be affirmed unless counsel failed to provide an explanation when asked, or there is no possible satisfactory explanation.” (People v. Robinson (2004) 122 Cal.App.4th 275, 281 (Robinson).)
Defendant contends there is a reasonable probability that the amendment could have been challenged successfully. We disagree. Section 1009 prohibits an amendment to an information where a proposed offense is not shown by the evidence submitted at the preliminary examination. Unlike the situation in People v. Burnett (1999) 71 Cal.App.4th 151, cited by defendant, testimony was presented at the preliminary examination supporting the addition of the charge of felonious assault (id. at pp. 180-181). Napa County Peace Officer Sean Ulitin testified that he was told by Deibert that defendant “had hit her in the face and it caused her jaw teeth to not line up.” She also said that defendant was “furious” with her and “backhanded her with a closed fist and hit her in the front of the jaw. That’s what caused the jaw injury that she sustained.” Nothing in the transcript of the preliminary examination supports defendant’s contention that the “blow” to Deibert’s jaw would not be likely to cause great bodily injury because it was “delivered without leverage in the cramped confines of a car.” “The use of hands or fists alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury.” (People v. Wingo (1975) 14 Cal.3d 169, 176; see People v. Duke (1985) 174 Cal.App.3d 296, 302-303 [“if hands, fists and feet, etc., are the means employed, the charge will normally be assault with force likely to produce great bodily injury”].)
Deibert did not testify at the preliminary examination because on that day she gave birth to defendant’s child.
Nor is there anything in the record supporting defendant’s contention that the trial court would have denied the request to amend on the grounds that it was untimely or “necessitated a different defense theory.” The trial court may “permit the prosecution to amend to add an additional count at the time of the commencement of the trial,” as noted by the court here, “and also to amend an information to properly state the offenses at the conclusion of the trial.” (People v. Flowers (1971) 14 Cal.App.3d 1017, 1020.) The factual basis for the new assault charge was the same as the battery charge previously alleged in the complaint and original information. Given defendant’s defense at trial, we see no basis to conclude that he could have developed a more persuasive defense had he received earlier notice of the assault charge. (People v. Seaton (2001) 26 Cal.4th 598, 641.)
We also reject defendant’s contention that the record shows his attorney left it to him to decide whether the information should be amended. The record shows only that after defense counsel discussed the issue with her client, the decision was made not to pursue an objection to the amendment. There is no basis to assume the decision was based solely on defense counsel’s questioning of defendant and her comments in open court. Off the record, defense counsel may have told defendant—among many other possibilities—that if an objection to the amendment were successful, the prosecution could move to dismiss the charges and refile the information with the new assault count. (Robinson, supra, 122 Cal.App.4th at p. 283; see People v. Flower, supra, 14 Cal.App.3d at p. 1021 [“even if the court were to disallow an amendment [of an information] after a mistrial, the district attorney could file a new information setting forth the additional counts”].) Consequently, “all defense counsel would have gained by objecting would have been delay.” (Robinson, supra, at p. 283.) In the absence of any indication of what defense counsel told defendant off the record, we cannot conclude “ ‘there simply could be no satisfactory explanation’ ” for counsel’s failure to object to the amendment. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) “Without that showing we cannot find incompetence.” (Robinson, supra, at p. 282.)
II. Remand for Resentencing Is Not Warranted
A. Consecutive Terms
At sentencing, defense counsel asked the court to impose concurrent terms for several reasons. Defendant had spent time in and out of prison but had never been offered any rehabilitative services until his incarceration after his arrest for the current offenses, he was a model prisoner, and the court should consider releasing him so that he could attend a residential drug treatment program. Counsel also reminded the court of Deibert’s trial testimony that this was an isolated incident that occurred only because defendant was under the influence of drugs, and Deibert had written to the court indicating that she wanted defendant to get help and not go to prison.
The court rejected defendant’s request and imposed consecutive terms based upon the factors in California Rules of Court, rule 4.425. The court found the offenses of inflicting corporeal injury (grabbing and bruising Deibert’s arms), assault (striking Deibert’s jaw), and criminal threats (threatening to kill Deibert), were separate incidents committed in separate places and involved “separate acts of violence or threats of violence.” While the record may also have supported a finding that these acts were part of a single continuous episode, the court did not abuse its discretion in concluding that the offenses were separated by sufficient periods of time to give defendant the opportunity to reflect and to cease his criminal behavior, which he failed to do. (See People v. Trotter (1992) 7 Cal.App.4th 363, 368 [trial court acted within its discretion in imposing consecutive sentences for two assault convictions based on firing two shots a minute apart].)
In relevant part, California Rules of Court, rule 4.425(a) provides that the criteria affecting concurrent or consecutive sentences, include whether “[t]he crimes and their objectives were predominantly independent of each other,” “[t]he crimes involved separate acts of violence or threats of violence,” or “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
B. Felony Sentences for Wobbler Offenses
Defendant was convicted of offenses known as “wobblers.” “[A] wobbler is a special class of crime which could be classified and punished as a felony or misdemeanor depending upon the severity of the facts surrounding its commission.” (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 360, fn. 17.) If a defendant is charged with a wobbler offense as a felony, the designation of the offense as a felony or misdemeanor is made by the court when sentence is imposed. (§ 17, subd. (b); see People v. Superior Court (Perez), supra, at pp. 355-356.)
Defendant contends the court should have considered his felony convictions as misdemeanors for sentencing purposes. Because the defense did not specifically asked the court to impose misdemeanor sentences, the issue is not preserved for review. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) Even if the issue had been raised, we see nothing in the record that indicates the trial court would have imposed misdemeanor sentences.
At sentencing, defense counsel argued that the court should impose sentence for inflicting corporeal injury on a cohabitant, and stay the sentences on the assault and criminal threats offenses, pursuant to section 654, which request was opposed by the prosecutor. The court denied the request, and no issue is raised on appeal regarding this ruling.
In evaluating whether a felony should be reduced to a misdemeanor at the time of sentence, the court considers “factors that direct similar sentencing decisions . . ., including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.]410.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
We reject the contention that the offenses “were certainly of the most mitigated character.” Defendant’s conduct was “volitional and calculated,” and “separated by periods of time during which reflection was possible. None was spontaneous and uncontrollable. ‘[Defendant] should . . . not be rewarded where, instead of taking advantage of an opportunity to’ cease his combative conduct towards [Deibert], ‘he voluntarily resumed his . . . assaultive behavior.’ ” (People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Even accepting the questionable assumption that Deibert did not suffer great or serious bodily injury, the offenses were not necessarily trivial. By imposing the middle rather than the low term on the principal offense of inflicting corporeal injury on a cohabitant, and consecutive rather than concurrent terms on the other two felony offenses, the trial court indicated its belief that defendant’s conduct did not warrant treating the convictions as misdemeanors for the purpose of imposing sentence.
DISPOSITION
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.