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People v. Wilhelm

California Court of Appeals, Fourth District, Second Division
Apr 28, 2009
No. E043558 (Cal. Ct. App. Apr. 28, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. INF050868, H. Morgan Dougherty, Judge.

Law Offices of Jose C. Rojo and Jose C. Rojo for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Gary W. Brozio, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

McKinster, J.

A jury found defendant and appellant, Colin Earl Wilhelm (hereafter defendant), guilty as charged of assault on a peace officer with force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (c) (count 1); possession of methamphetamine for sale in violation of Health and Safety Code section 11378, subdivision (a) (count 2); transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) (count 3); and misdemeanor evading a peace officer in violation of Vehicle Code section 2800.1 (count 4). After defendant waived his right to a jury, the trial court made true findings on the allegation under Health and Safety Code section 11370.2, subdivision (b) that defendant had previously been convicted of five felonies. The trial court also found true the allegation under Penal Code section 667.5, subdivision (b) that defendant had served a prior term in prison. Based on the guilty verdicts and true findings the trial court sentenced defendant to serve a total term of 14 years in state prison.

Defendant raises various claims of error in this appeal, the details of which we recount below in our discussion of those claims, all of which challenge the jury’s guilty verdicts. We conclude the claims lack merit. Therefore, we will affirm.

FACTS

Riverside County Deputy Sheriff Frank Schiavone testified, in pertinent part, that in the afternoon of May 19, 2005, he stopped a car on Dillon Road because the vehicle was weaving within the lane. Defendant was the driver of the car. As defendant was getting out of the car, in compliance with the deputy’s request, Deputy Schiavone noticed defendant attempt to stuff a “white plastic bag or a bag with white substance” down between the seat and the center console. When he asked what defendant was doing, defendant told the deputy that he was getting his money. Deputy Schiavone suspected defendant was under the influence of either alcohol or a controlled substance, but after having him perform a field sobriety test, the deputy concluded that defendant was not under the influence.

By looking through the window of defendant’s car, Deputy Schiavone spotted a baggie shoved down next to the seat, and told defendant he suspected the baggie contained methamphetamine. Because he wanted to search defendant’s car, he asked defendant to wait in the patrol car but defendant pushed past the deputy and headed back toward his own car. Deputy Schiavone grabbed defendant but defendant slipped through the deputy’s grasp. The deputy yelled at defendant to get on the ground but defendant did not comply. Defendant and Deputy Schiavone struggled “back and forth.” During that struggle the deputy felt that defendant was trying to push him into traffic. Deputy Schiavone struck at defendant with his baton, but defendant managed to get in his car and close the door. Deputy Schiavone grabbed defendant through the open window and defendant drove off while Deputy Schiavone still had a grip on defendant’s arm. The deputy let go.

Deputy Schiavone called dispatch, then got back in his patrol car and followed defendant for a mile to one and one-half miles until defendant crashed while attempting to make a turn at a high rate of speed. After the crash, Deputy Schiavone searched defendant and found $967 in defendant’s pants pocket but the deputy did not find the plastic baggie. Deputy Schiavone drove back along the route defendant had travelled and found a baggie on the side of the road. The baggie contained 56 grams of methamphetamine, worth about $4,500 on the street.

Additional facts pertinent to the issues defendant raises on appeal will be recounted below.

DISCUSSION

We address defendant’s various claims of error in the order those claims are set out in his opening brief. Therefore, we first address defendant’s challenge to the admissibility of evidence that he previously had been convicted of possession of a controlled substance for sale.

1. PRIOR CRIMES EVIDENCE

Over defendant’s objection under Evidence Code sections 1101, subdivision (a) and 352, the trial court found that evidence defendant had been convicted in 2000 of possession of a controlled substance for sale, in violation of Health and Safety Code section 11378, was admissible under Evidence Code section 1101, subdivision (b) to prove defendant’s knowledge of methamphetamine and his intent to sell that drug. In order to minimize the impact of the evidence, defendant stipulated that in 2000 he was convicted of violating Health and Safety Code section 11378, possession of methamphetamine for sale.

Defendant claims the trial court relied on Evidence Code section 1108 to admit the prior crime evidence. Defendant is wrong. Defense counsel referred to Evidence Code section 1108 during the discussion, but the trial court corrected him, and stated that evidence of defendant’s prior conviction “is received under [Evidence Code section] 1101(b).”

Defendant argued in the trial court, as he does in this appeal, that the prior conviction was inadmissible under Evidence Code section 1101, subdivision (a) as evidence of defendant’s character or propensity to commit crime. Even if relevant to prove some other issue, defendant argues that the probative value was substantially outweighed by the potential for prejudice because defendant denied that he possessed the drugs at issue in this case. In addition, defendant argues that the trial court allowed evidence of all four of his prior felony convictions to be introduced into evidence and thus to be presented to the jury. We agree with defendant’s initial claim, for reasons we now explain.

Under Evidence Code section 1101, subdivision (a), “evidence of a person’s character or a trait of his or her character... is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of Evidence Code section 1101 provides, “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact... other than his or her disposition to commit such an act.” In this case, the trial court found that defendant’s prior conviction for possession of methamphetamine for sale was admissible under Evidence Code section 1101, subdivision (b) to prove knowledge and intent.

As the Supreme Court explained in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), in order for evidence of an uncharged crime to be admissible under Evidence Code section 1101, subdivision (b) to prove some fact other than the defendant’s propensity to commit crime, the charged and uncharged crime must bear sufficient similarity to the current crime in order to support the intended inference. The court described a range of similarity between the charged and uncharged offense, and explained that the least degree of similarity was necessary in order for the uncharged offense to be admissible as circumstantial evidence of the defendant’s intent. (Ewoldt, at p. 402.) On the opposite end of the range, in order to be admissible as circumstantial evidence of the defendant’s identity as the perpetrator of the offense, the greatest degree of similarity is required. “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ewoldt, at p. 403.)

In addition to meeting the threshold requirement of similarity, Ewoldt counsels that a trial court also must weigh the probative value of the evidence against its potential for prejudice under Evidence Code section 352, a process that requires “‘extremely careful analysis.’” (Ewoldt, supra, 7 Cal.4th at p. 404, quoting People v. Smallwood (1986) 42 Cal.3d 415, 428.) The probative value of the uncharged offense evidence must substantially outweigh the probability of prejudicial effect in order for such evidence to be admissible. (Ewoldt, at pp. 404-407.) On appeal, we review the trial court’s ruling for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118; People v. Earley (2004) 122 Cal.App.4th 542, 547.)

The trial court, as previously noted, found that the prior crime evidence was admissible to prove defendant’s intent and knowledge. Knowledge of the narcotic nature of the substance and intent to sell are elements of the charged drug crimes, and therefore evidence that defendant previously had been convicted of possessing methamphetamine for sale was admissible under Evidence Code section 1101, subdivision (b) to prove those facts. (People v. Ellers (1980) 108 Cal.App.3d 943, 953.) However, defendant denied that he possessed the methamphetamine that Deputy Schiavone recovered from the roadside. Under these circumstances even if relevant to prove some fact other than defendant’s propensity to commit crime, the probative value of the prior crime evidence is substantially outweighed by the potential for prejudice. As stated in Ewoldt, “Evidence of intent is relevant to establish that, assuming the defendant committed the alleged conduct, he or she harbored the requisite intent.” (Ewoldt, supra, 7 Cal.4th at p. 406.) The evidence in this case shows that the baggie Deputy Schiavone recovered contained 56 grams of methamphetamine, a quantity that would net about $4,500 if sold on the street. If defendant possessed that methamphetamine, “his intent in doing so could not reasonably be disputed.” (Ibid.) Consequently, as to the charges of possessing methamphetamine for sale and transporting methamphetamine, the prejudicial effect of admitting that evidence substantially outweighed the probative value of that evidence to prove defendant’s intent. (Ewoldt, at p. 406.)

Although we conclude that the trial court abused its discretion in admitting the evidence that defendant had previously been convicted of possessing methamphetamine for sale because the probative value of that evidence was substantially outweighed by its prejudicial effect, that error “does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)

A more favorable result is not reasonably probable in this case. Defendant did not testify at trial and instead argued in closing that Deputy Schiavone fabricated the evidence against him. Consequently, the only issue for the jury to resolve was whether they believed Deputy Schiavone’s testimony regarding his encounter with defendant on the day in question, or believed defendant’s argument that the deputy was lying. Defendant does not discuss the issue of prejudice and instead makes the conclusory statement that introduction of one prior conviction was extremely prejudicial. Defendant then asserts that the trial court actually admitted evidence of all four of defendant’s prior convictions, and that error “was a devastating blow,” which according to defendant explains why the jurors reached verdicts in this case in less than an hour.

In our view, it is not reasonably probable the jury would have believed the defense argument that Deputy Schiavone fabricated his testimony and thus would have reached a result more favorable to defendant in this case if the evidence of his 2000 prior conviction had not been admitted into evidence at trial. The trial court instructed the jury that the prior crime evidence could be considered only in deciding defendant’s intent and knowledge, and the prosecutor cited the prior crime evidence in his closing argument only to argue its limited relevance. Under these circumstances, the error could not have been prejudicial.

We also reject defendant’s claim that the trial court inadvertently allowed the jury to consider all of defendant’s prior convictions. Defendant bases this claim on the fact that at the conclusion of the prosecutor’s case-in-chief, the trial court apparently admitted into evidence all the documentary evidence pertinent to the prior conviction and prior prison term special allegations contained in the information, even though the trial court had bifurcated trial on those allegations from trial on the substantive crimes. The Attorney General asserts that the record does not demonstrate that the jury actually considered that evidence because it does not disclose that the documentary evidence in question (exhibits 18-23) went into the jury deliberation room.

The Attorney General requests that we correct the record to reflect that the so-called 969(b) packets did not go into the jury room. To support that request, the Attorney General submits a declaration from the courtroom clerk setting out her custom and practice with regard to such evidence. We conclude the issue is irrelevant, for reasons we explain above, and therefore deny the request.

We will not resolve the issue because even if the jury considered the documentary evidence, and as a result knew about all four of defendant’s prior convictions, defendant has not demonstrated prejudice, i.e., that absent the error a result more favorable to defendant is reasonably probable. Instead, defendant asserts the evidence “was devastating to the defense, for the verdict came back only an hour after deliberations started.” The prior crimes evidence is one explanation for the jury’s speed in reaching a verdict; another is that the jury believed Deputy Schiavone’s testimony, and rejected defendant’s argument that the deputy fabricated the evidence. In order to believe defendant’s argument, the jury would have to believe that Deputy Schiavone had 56 grams of methamphetamine with him at the time he encountered defendant and instead of simply claiming he found the drugs in defendant’s car, the deputy contrived a scheme to support a claim that the deputy found the methamphetamine on the side of the road after defendant tossed the drugs from his car while being pursued by the deputy. It is not reasonably probable the jury would have believed such a claim even if the evidence of defendant’s prior criminal convictions had not been introduced into evidence and considered by the jury. Accordingly, if that error occurred, we conclude it was harmless.

2. MOTION TO SUPPRESS EVIDENCE

Defendant next contends that the trial court erroneously denied his Penal Code section 1538.5 motion to suppress the methamphetamine Deputy Schiavone recovered in this case because that evidence was the fruit of an unlawful detention. In his motion defendant claimed that the initial detention was unlawful because Deputy Schiavone did not have probable cause to stop defendant’s car. At the hearing on defendant’s motion to suppress, Deputy Schiavone testified in pertinent part that on May 19, 2005, at 3:23 p.m. he was traveling westbound on Dillon Road behind a car that was weaving within the lane and that crossed over the fog line three times. After following the vehicle for about one-half mile, the deputy effected a traffic stop because he believed that swerving within the lane is a traffic violation, and he also wanted to investigate whether the driver was under the influence of drugs or alcohol. When Deputy Schiavone made contact with defendant, who was the driver of the car, defendant seemed “extremely nervous, fidgety.” The deputy asked defendant to get out of the car, and as he complied, Deputy Schiavone noticed defendant “was attempting to conceal something in between the seat and the center console glove box.” Once defendant was out of the car, Deputy Schiavone “evaluated him to see if he was under the influence of a controlled substance or had been drinking.”

After administering field sobriety tests, Deputy Schiavone concluded defendant was not under the influence. While defendant sat on the bumper of the police car, Deputy Schiavone “went around the passenger side and looked through the window into the center of the vehicle where [he] saw a clear plastic bag with methamphetamine.” Deputy Schiavone then asked defendant for consent to search the vehicle. Defendant denied that request.

Because defendant asserted in his moving papers that there was no fog line on Dillon Road at the time Deputy Schiavone stopped defendant’s car, the prosecutor also presented the testimony of Richard Healy, “[p]rincipal engineer technician for Riverside County transportation” who testified in pertinent part that the county transportation department is responsible for “edge striping on Dillon Road,” and according to the county’s records, on the date Deputy Schiavone stopped defendant, there was edge striping on Dillon Road in the section where the deputy observed defendant’s driving.

After the prosecution rested, defense counsel made an offer of proof that if defendant were to testify, he would say there was no fog line on the pertinent section of Dillon Road on the date in question, and “another witness that lives in the area out there that was familiar with that road during these dates... would testify there was no white line when this incident occurred.”

At the conclusion of the hearing, the trial court denied defendant’s motion to suppress after finding that Deputy Schiavone had probable cause to make the traffic stop and to detain defendant based on his observations of the vehicle which supported his suspicion that the driver might be under the influence. The trial court also found that for a period of time after the deputy made the stop, he was able to see the baggie in plain sight. As noted above, defendant challenges the trial court’s ruling, claiming, first, that the stop was unlawful because the Vehicle Code sections the deputy cited in his testimony do not proscribe weaving within a traffic lane, and in any event, the detention was prolonged beyond the point necessary to investigate such a violation. We do not share defendant’s view.

In reviewing the trial court’s ruling on defendant’s motion to suppress evidence, “we are bound by the trial court’s factual findings, whether express or implied, if they are supported by substantial evidence. However, we review questions of law independently to determine whether the challenged seizure meets constitutional standards of reasonableness.” (People v. Boissard (1992) 5 Cal.App.4th 972, 977, citing People v. Loewen (1983) 35 Cal.3d 117, 123, and People v. Leyba (1981) 29 Cal.3d 591, 596-597.)

“‘Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess “reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.” [Citations.] Such reasonable suspicion “requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” [Citation.]’ [Citation.]” (People v. White (2003) 107 Cal.App.4th 636, 641, quoting U.S. v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1095.)

Deputy Schiavone testified that he observed defendant’s vehicle weaving between the lines, or within the traffic lane, and suspected the driver was under the influence of alcohol or drugs. That testimony, which the trial court believed and by which we therefore are bound, supports a reasonable suspicion that defendant was driving while under the influence of alcohol or drugs and thus in violation of Vehicle Code section 23152. (See Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1485 [“More than one California court has found that ‘weaving’ within a lane provides sufficient cause to conduct an investigatory stop”].) The deputy’s reasonable suspicion that defendant was violating the Vehicle Code rendered the detention lawful under the Fourth Amendment.

In arguing otherwise, defendant notes that neither weaving within the lane nor crossing the fog line violates any Vehicle Code section and therefore the other reasons Deputy Schiavone stated for stopping defendant were invalid. Defendant’s argument is irrelevant because it ignores Deputy Schiavone’s testimony that he also suspected defendant was driving under the influence. That suspicion, as previously discussed, rendered the traffic stop reasonable under the Fourth Amendment, a conclusion that ends our inquiry into the lawfulness of the initial detention.

After Deputy Schiavone lawfully detained defendant, he observed the baggie that contained a substance he believed was methamphetamine. That observation justified prolonging the detention in order to investigate further. (People v. Russell (2000) 81 Cal.App.4th 96, 102 [“Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention”].) Because he had declined consent to search, defendant apparently believed he was free to go and started to leave. When Deputy Schiavone attempted to prevent defendant from leaving, a physical altercation occurred that ended when defendant managed to get in his car and drive off. Defendant did not demonstrate in the trial court and therefore cannot demonstrate on appeal that this detention was unduly prolonged.

Defendant did not question the length of the detention in his moving papers and only raised that issue at the hearing on his motion to suppress.

Defendant also contends that the trial court prevented him from presenting pertinent evidence at the hearing on his motion to suppress, and as a result the trial court abused its discretion. As noted above, defendant made an offer of proof regarding that testimony, which was directed at supporting his claim that there was no fog line on the pertinent section of Dillon Road. The trial court accepted the offer of proof but concluded it was irrelevant because Deputy Schiavone’s testimony regarding his observation of defendant’s driving established a reasonable suspicion that defendant was under the influence of alcohol or a controlled substance, which in turn supported a reasonable suspicion on which to lawfully stop defendant’s car. Whether there was a fog line that defendant might or might not have crossed was not relevant to that issue, although it was relevant, as the trial court acknowledged, to the issue of the deputy’s credibility.

The trial court expressed the view that witness credibility is not an issue in a suppression motion; the only issue is admissibility of the evidence. Although the trial court is incorrect, the effect of the trial court’s ruling was that it improperly excluded admissible evidence. The erroneous exclusion of evidence must be prejudicial in order to require reversal of the judgment. (Evid. Code, § 354.) Defendant has not demonstrated prejudice, i.e., that if the trial court had considered the testimony of defendant’s witnesses, it is reasonably probable the trial court would not have believed Deputy Schiavone’s testimony regarding his observations of the manner in which defendant was driving and therefore the trial court would have granted defendant’s motion to suppress. (People v. Watson (1956) 46 Cal.2d 818.)

Defendant cites Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4h 865, 900, to support his claim that the trial court improperly excluded evidence pertinent to the issue of credibility. To the extent defendant’s reliance on the case suggests defendant is of the view the trial court engaged in misconduct by excluding the evidence, we reject that assertion.

In summary, we conclude that the trial court correctly denied defendant’s motion to suppress the drugs because the deputy’s testimony established probable cause to detain defendant in order to investigate a possible crime, namely a violation of Vehicle Code section 23152, driving while under the influence of alcohol or a controlled substance, and that detention was not unduly prolonged.

3. MOTION FOR NEW TRIAL

Defendant retained new counsel after the jury returned its verdicts finding him guilty as charged, and his new attorney filed a motion for new trial on the ground that (1) defendant was denied the effective assistance of counsel at trial, (2) the hearing on defendant’s motion to suppress evidence did not comport with the requirements of due process, and (3) the trial court made erroneous and prejudicial evidentiary rulings during trial. In this appeal, defendant only challenges the trial court’s ruling on the first two grounds asserted in his new trial motion.

Penal Code section 1181 specifies the grounds upon which a court may grant a new trial. Neither ground defendant relies on in this appeal is included in the statute, although case law recognizes that a trial court may grant a new trial based on ineffective assistance. (See People v. Fosselman (1983) 33 Cal.3d 572, 582.)

With respect to his suppression motion, defendant claimed in his motion for new trial that he had new evidence pertinent to whether his initial detention was lawful and therefore that evidence was relevant to whether the judge who heard the matter had properly denied defendant’s motion to suppress. According to defendant, the evidence, which he appended to his new trial motion, would show there was no fog line on Dillon Road in the area where he was stopped by Deputy Schiavone. In ruling on defendant’s motion for new trial, the trial court found it lacked jurisdiction to reconsider the suppression motion. On appeal, defendant argues that he was denied his constitutional right to due process of law at the hearing on his suppression motion because the trial court failed to hear defense witnesses.

Defendant does not cite any authority to support his assertion that the trial court has jurisdiction to reconsider a motion to suppress evidence, and for that reason we may reject the issue. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784; see also People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [argument of counsel is insufficient; briefs must contain factual underpinning, record references, argument, and authority]; People v. Ham (1970) 7 Cal.App.3d 768, 783 [“Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion”].)

Moreover, even if viewed as an appeal of the trial court’s ruling on his motion to suppress, we must reject the challenge because the trial court did not deprive defendant of his right to a fair hearing on the suppression motion. As previously noted, the trial court allowed defendant to make an offer of proof. The evidence defendant appended to his motion for new trial is not the evidence defense counsel included in that offer of proof. Consequently, defendant has not established that the trial court precluded him from presenting the evidence in question. The evidence was not presented because defense counsel did not offer it at the hearing on the suppression motion.

As recounted above, defense counsel made an offer of proof that defendant and another witness who lives in the area would testify there was no fog line. The evidence defendant offered in support of his motion for new trial was the declaration of a county employee charged with keeping the records of road maintenance performed by the county road department.

If viewed as an ineffective assistance of counsel claim, defendant has not demonstrated prejudice. To prevail on a claim of ineffective assistance of counsel, defendant must show both deficient performance and prejudice, i.e., “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Maury (2003) 30 Cal.4th 342, 389.)

Defendant has not demonstrated, and in our view cannot demonstrate, that if defense counsel had included the additional evidence in his offer of proof during the suppression hearing, the trial court would have reached a result more favorable to him on that motion. The trial court denied defendant’s motion to suppress the methamphetamine based on Deputy Schiavone’s testimony that he observed defendant weaving within the lane and that led the deputy to suspect defendant was driving while under the influence of alcohol or a controlled substance. Defendant’s evidence regarding the fog line was directed at challenging the credibility of the deputy’s testimony. The trial court was aware of the divergent views regarding the fog line and nevertheless denied defendant’s motion to suppress. Additional evidence on that issue, even if from a more reliable source than defendant, would not result in a more favorable outcome.

Defendant also asserted in his motion for new trial that he was denied the effective assistance of counsel at trial. To support this claim, defendant presented the declaration of his trial attorney, Gary Redinger, who stated, in pertinent part, that on the fourth day of trial he learned that his 84-year-old mother had been in a car accident in New York, and had suffered life threatening injuries including a crushed pelvis and unspecified internal injuries. Mr. Redinger said he did not sleep that night, and with the court’s permission, returned to court late the next day. Although he believed he was able to continue with trial, he “did not realize that [his] mental capacity was diminished due to the events the day before, and that [he] was unable to provide effective council [sic].” “In retrospect,” Mr. Redinger said he realizes he was wrong as evidenced by the fact that he fell asleep three times during trial that day, did not effectively examine a defense witness, did not accurately assess whether defendant should testify, failed to present evidence, failed to object to the admissibility of evidence, and did not present an effective summation. Mr. Redinger stated, “In retrospect, I believe I should have requested a short continuance and allowed myself to regain stamina and composure to provide an effective council [sic].”

Defendant contends that trial counsel’s purported oversights amounted to the withdrawal of a potentially meritorious defense. However, defendant has not demonstrated the validity of that claim. Instead defendant asserts the bald conclusion that, because he did not testify at trial, the jury did not hear his version of what happened when Deputy Schiavone pulled him over, and the jury could not assess the credibility of his claim. Although defendant did not testify, trial counsel in his closing argument put forth defendant’s version of the pertinent events. Defense counsel argued that Deputy Schiavone lied; he did not have any reason to stop defendant other than to harass him; after detaining defendant, the deputy beat him up and then fabricated the drug possession charge against defendant in order to conceal his own unlawful actions. In short, trial counsel’s decision not to call defendant as a witness did not have the effect of withdrawing a meritorious defense. The only effect of not having defendant testify is that the jury could not assess his credibility.

Assuming without actually deciding that trial counsel did not have a valid tactical reason for his decision not to call defendant as a witness, in order to prevail on his ineffective assistance of counsel claim, defendant must demonstrate prejudice as a result of that decision. (People v. Fosselman, supra, 33 Cal.3d at p. 584 [when counsel’s deficient performance does not amount to withdrawal of a potentially meritorious defense, in order to prevail on an ineffective assistance of counsel claim, defendant must demonstrate that it is reasonably probable the jury would have reached a more favorable result absent counsel’s failings].) The jury did not believe the defense claim that Deputy Schiavone fabricated the charge against defendant, as evidenced by their guilty verdicts. Defendant has not demonstrated that if he had testified at trial it is reasonably probable the jury would have believed him and thus reached a more favorable result on some or all of the charges. Because he has not demonstrated either deficient performance or prejudice, defendant has not established his ineffective assistance of counsel claim.

The balance of defendant’s ineffective assistance of counsel claim is based on unspecified omissions by defense counsel—he did not present “other evidence” and did not make “objections.” Those assertions do not demonstrate deficient performance, and defense counsel’s admission that he was unable to present “an effective council” does not establish the accuracy of the claim. In short, defendant has not demonstrated deficient performance and resulting prejudice. Therefore, we must reject defendant’s claim that he was denied the effective assistance of counsel at trial.

4. SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence was insufficient to prove the charge of assault on a peace officer with force likely to produce great bodily injury as alleged in count 1, and therefore we must reverse his conviction on that charge. Again, we disagree.

“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.... The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is “evidence which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Defendant acknowledges in raising this claim, that Deputy Schiavone testified that he physically struggled with defendant in order to keep defendant from leaving. The two struggled back and forth and it felt to the deputy like defendant was trying to push him into traffic. After defendant got in his car, he drove off with Deputy Schiavone holding on to his arm. The deputy testified that he had to let go of defendant, “[o]therwise, he would have dragged me down the road.”

As the trial court instructed the jury in this case, in order to prove the crime of assault on a peace officer with force likely to produce great bodily injury, the evidence had to show, among other things, that “defendant did an act that by its nature would directly and probably result in the application of force to a person,” and “[t]he force used was likely to produce great bodily injury.” (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)

Defendant argues that the evidence shows he did not assault the deputy, he only tried to get away from him, and in any event the deputy was not injured. Defendant’s argument ignores the evidence that defendant drove off with Deputy Schiavone hanging on to defendant’s arm. Whether the deputy suffered actual injury is irrelevant because the statute in question, Penal Code section 245, subdivision (c), focuses on whether the force used is likely to produce great bodily injury. (See People v. Aguilar, supra, 16 Cal.4th at p. 1028.) Defendant’s act of driving off in his car with the deputy hanging on to him is sufficient to support the jury’s implied finding that defendant used force likely to produce great bodily injury.

5. PRETRIAL DISCOVERY

Defendant contends that the prosecution violated its duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) to disclose material, exculpatory evidence because the prosecution did not produce what defendant describes as the dispatch “activity log.” Defendant contends that the activity log shows the events did not occur as Deputy Schiavone claimed, and if produced it would have been used at trial to impeach the deputy’s testimony. Defendant did not raise this claim in the trial court and therefore the activity log is not part of the record on appeal. Defendant filed a motion to augment the record to include the log, a copy of which is appended to defendant’s motion. We deemed the request to be a request to take judicial notice of the log, and reserved ruling on the issue in order to address it in the context of the appeal.

On the issue of judicial notice, the Attorney General argues that even if the log is a proper subject of judicial notice under Evidence Code section 452, defendant’s claim depends on the truth of the entries contained in the log, and that is not the proper subject of judicial notice. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064.) We are inclined to agree with the Attorney General. In addition, and as the Attorney General also points out, even if we could take judicial notice of the truth of the matters contained in the log, the meaning of the log entries is unclear. For example, one entry reads “subj threw hs at dep.” According to defendant, that entry indicates that defendant threw the contraband at Deputy Schiavone before defendant drove away from the initial stop. Ignoring the obvious question of how that fact is exculpatory, defendant’s interpretation is based entirely on conjecture. The actual meaning of the various entries requires testimony from a qualified witness. Consequently, even if we were to take judicial notice of the fact that the activity log exists, we would not conclude that the content of the log contradicts Deputy Schiavone’s description of events.

More significantly, even if we accept defendant’s argument and were to assume without actually deciding that the log contains entries that contradict Deputy Schiavone’s testimony, failure to produce that evidence would not constitute a Brady violation. “‘[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called “Brady material”—although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)

Defendant has not shown a reasonable probability of a different result. Defendant contends that the logs would have been used to impeach Deputy Schiavone “and to prove the theory of the defense: that Deputy Schiavone had the drugs before he even met [defendant] and he wanted to attribute those drugs to [defendant] to arrest him.” Defendant does not explain how evidence that defendant threw the drugs at Deputy Schiavone before the pursuit began would support the defense theory. That evidence would still compel guilty verdicts on the drug possession and transportation charges. Therefore, for all of the reasons noted, we conclude that defendant has not demonstrated a Brady violation occurred in this case.

6. PROSECUTORIAL MISCONDUCT CLAIM

As his final claim, defendant contends that the prosecutor improperly commented on defendant’s exercise of his right under the Fourth Amendment to be free of unreasonable searches and seizures and his Fifth Amendment right to not incriminate himself. According to defendant, the prosecutor committed those violations by telling the jury “that a reasonable person, like a jury member, would have complied with the officer’s request and allowed the search [of the car].” We do not share defendant’s view of the prosecutor’s argument, and in any event defendant did not object and therefore has not preserved the issue for review on appeal.

In the context of addressing whether defendant acted reasonably and therefore in self-defense when he attempted to push past Deputy Schiavone and leave the scene, the prosecutor argued in closing that self-defense requires that defendant reasonably believe he was going to be harmed: “His belief must be reasonable.... He must have acted only because of his belief that he was going to be harmed, not out of anger, not out of revenge and, of course, the force he used had to be reasonable. At a reasonable person standard. That’s you. You’re the reasonable person. It means somebody else, in a similar situation with similar knowledge, considering all the circumstances that the defendant knew and was faced with, would have done the same thing. Right? [¶] Would you have done the same thing? If an officer said, ‘I want to search your car. I need you to sit in the backseat of mine while I go do that,’ would a reasonable person then decide, ‘No[,] I’m going to fight with the officer[?’] Of course not. Most criminals don’t even do that. Even when they know they’re guilty of a crime. It’s a different type of criminal who decides, ‘I’m going to fight an officer.’”

As noted previously, defendant did not object to the prosecutor’s argument and therefore has not preserved his prosecutorial misconduct claim for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”]; People v. Hill (1998) 17 Cal.4th 800, 820 [general rule is that claim of prosecutorial misconduct is not preserved for review on appeal unless the defense makes timely objection and requests an appropriate admonition].)

Moreover, we do not share defendant’s interpretation of the prosecutor’s argument, which as quoted above, was directed at defendant’s claim that he acted in self-defense when he struggled with Deputy Schiavone and attempted to leave. The validity of that claim requires that defendant act as a reasonable person under the circumstances. The prosecutor argued that defendant did not act as a reasonable person under the circumstances and therefore cannot claim that he acted in self-defense. Because defendant’s claim on appeal depends on his mischaracterization of the prosecutor’s argument, and the prosecutor did not argue or suggest that defendant should have consented to a search of his car, we reject defendant’s claim.

In short, we conclude that the prosecutor’s argument was not a comment on defendant’s exercise of his constitutional rights, and in any event, defendant did not object to the argument.

DISPOSITION

The judgment is affirmed.

We concur: Hollenhorst, Acting P.J., Miller, J.


Summaries of

People v. Wilhelm

California Court of Appeals, Fourth District, Second Division
Apr 28, 2009
No. E043558 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Wilhelm

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. COLIN EARL WILHELM, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 28, 2009

Citations

No. E043558 (Cal. Ct. App. Apr. 28, 2009)