Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR272964.
SIMONS, Acting P.J.
Joshua Brown (appellant) appeals his conviction by jury trial of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and misdemeanor resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)). He was sentenced to four years in state prison. He contends the court erroneously admitted evidence and failed to instruct the jury on the limited use of that evidence. We affirm.
A mistrial was declared on a charge of attempted second degree robbery (Pen. Code, §§ 664, 211) based on the jury’s deadlock on that count.
BACKGROUND
Around 6:30 p.m. on January 3, 2010, Gorgonio Gonzalez left his apartment to take out the trash. On his way back from the trash dumpster, he was approached by a young woman (T.C.) who was with a young man, later identified as appellant. T.C. told Gonzalez she needed $2; Gonzalez responded that he did not have any money. Appellant then pulled a knife from his jacket, held it with the blade open and, in Spanish, told Gonzalez, “Give me your money.” Appellant lunged at Gonzalez two or three times, resulting in cuts to Gonzalez’s hand and arm. Gonzalez ran to his apartment and called the police. He then saw appellant and T.C. running toward Union Avenue.
Fairfield Police Officer William White was dispatched to the attempted robbery scene. As he approached the scene in his patrol car, White saw two people who matched the description of the suspects. When White was at the scene with Gonzalez, he dispatched his observations of the suspects to Officers Pucci and Golez.
On the evening of January 3, 2010, Fairfield Police Officer David Neal was assisting in looking for the potential attempted robbery suspects and was informed that there were suspects running from another officer. Neal then saw two people that matched the description of the suspects. Neal and Pucci attempted to set up a perimeter and began a yard-to-yard search. They saw someone jump a fence into a backyard and a chase ensued.
The officers announced their presence three times before entering the backyard. Eventually they found appellant lying in a corner of the yard, hidden under a tree. When appellant did not respond to the officers’ repeated commands to come out and show his hands, and the officers could not see his hands, Pucci twice used his Taser on him. Neal then dragged appellant out from under the tree and handcuffed him. A weapons search of appellant’s pockets turned up a pocketknife, later identified as the knife he used to attack Gonzalez. White then took Gonzalez to the scene to identify the suspects. He was able to positively identify T.C., but was unable to positively identify appellant. Thereafter, appellant complained of shortness of breath and was transported by ambulance to the hospital. Prior to being removed from under the tree appellant did not say he was having an asthma attack and Neal heard no wheezing sound.
At the hospital, appellant was noncompliant. Because he was screaming, fighting, and trying to kick the officers and nursing staff, he was restrained with a rip restraint device and a “spit mask.”
The Defense
Appellant testified that on the night of the incident he and his family friend, T.C., were walking to a food store. T.C. approached Gonzalez and asked him for money so she and appellant could use a pay phone. Gonzalez asked T.C. what she was going to give him and then grabbed her arm and pulled her toward him. Appellant approached Gonzalez and pushed him. Gonzalez told appellant to get away, appellant pushed Gonzalez again and Gonzalez summoned three men standing nearby. The three men approached; one held an 18-inch long metal pipe. Appellant pulled out his pocketknife and warned them to stay back and get away from him. Gonzales grabbed appellant’s arm, trying to grab the knife, and was injured in doing so. Appellant and T.C. were able to run away, chased by Gonzalez and the three men.
After appellant jumped a fence, he heard police calling him but could not respond because he was having an asthma attack. He said he did not want to move because he did not want his asthma attack to get worse. Since a doctor had said the best thing to do when having an asthma attack is to stay calm, appellant “just laid there.” Despite putting his left hand up, he was stunned with the Taser. After being pulled out from under the tree he “had a lot of adrenaline and... asthma” and asked to be taken to the hospital.
Rebuttal
White testified in rebuttal that when he interviewed appellant at the hospital, appellant said he had been in an altercation earlier that night but denied any knowledge of a knife and could not recall using a knife. Eventually appellant admitted the knife was his. Appellant said nothing to White about defending himself or T.C. against someone armed with a pipe.
DISCUSSION
I. Evidence of Uncharged Criminal Conduct
Appellant contends the court abused its discretion in admitting evidence of his postarrest violent conduct at the hospital. He asserts that the evidence was irrelevant and constituted uncharged criminal conduct under Evidence Code section 1101. He also contends that even if the evidence of his prior uncharged acts was admissible under section 1101, the inflammatory nature of the evidence rendered it inadmissible under section 352.
All undesignated section references are to the Evidence Code.
During the prosecutor’s direct examination, she asked Neal about appellant’s conduct at the hospital following his arrest. Over defense counsel’s relevance objection, Neal testified: “Very uncompliant, argumentative, yelling, screaming. He was fighting, trying to kick [Neal] and other officers and nursing staff.” When asked if there was a procedure to keep defendants from harming themselves and police, Neal again testified over objection, “[T]he handcuffs were taken from behind his back and handcuffed individually to the rails of the bed, so that his hands were at his side rather than behind his back. [¶]... [¶] His feet were put in a rip restraint device, which is a softer restraint with Velcro. It goes around each foot, and it has a buckle in the middle, so that we can attach handcuffs to those and connect it to the bed, or we use it for our vehicles, so people can’t kick out the windows.” When asked to explain how the rip restraint device worked, Neal testified over objection, “It’s individually wrapped around each leg and tethered in the middle so that they can’t separate their feet more than maybe a foot apart. They can still walk with it, in short steps, and it has a buckle in the middle so that it can be buckled down so that feet can’t fly.”
When the prosecutor asked Neal if anything had been done regarding appellant’s head or face, the following colloquy occurred:
“[Neal:] I believe someone placed a spit mask on him.
“[The Prosecutor:] Okay. And what’s that?
“[Neal:] It’s a clear mask like a stocking, ... a pantyhose-type... device that we have so that they can’t spit on us or nursing staff. It’s loose around the face and has a piece of elastic below it, to hold it... from falling off.
“[The Prosecutor:] Okay. And was he trying to spit at anybody while you were there?
“[Neal:] Yes.
“[The Prosecutor:] Okay. And what’s the concern when a defendant is spitting at someone? [¶] [Defense counsel’s relevance objection is overruled.]
“[Neal:] Obviously, disease and things like that. I don’t know him personally. I don’t know if he has any type of diseases or anything else, and we don’t want to get infected with that if at all possible.”
On cross-examination, defense counsel showed Neal photographs of appellant at the hospital depicting appellant in the spit mask after he had become compliant. Neal explained that in the photos appellant had his eyes closed and was being compliant, but this differed from the initial 90 minutes at the hospital in which appellant was combative.
Under section 1101, subdivision (b), evidence of uncharged incidents is admissible if relevant to demonstrate such issues as common plan, intent, or motive. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, 401-403 (Ewoldt).) “ ‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1243.) “Evidence may be excluded under... section 352 if its probative value is ‘substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.] ‘Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value.’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22-23 (Lindberg).)
Section 1101, subdivision (b), provides in relevant part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act” when relevant to prove a fact other than the defendant’s criminal disposition, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” Such relevance notwithstanding, evidence of prior conduct must also pass the test imposed by section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.)
A. Forfeiture
Preliminarily, the People argue that appellant forfeited the section 1101 and section 352 claims on appeal because he did not object on those grounds below. A party asserting the erroneous admission of evidence must make a timely and specific objection to the admission of the evidence, or make a motion to strike or exclude the evidence. (§ 353; People v. Williams (1988) 44 Cal.3d 883, 906. (Williams).) “A general objection on grounds of relevancy is not adequate to preserve an issue with respect to admission of other-crimes evidence for appeal. [Citation.]... While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility. [Citations.]” (Williams, at p. 906.)
In Williams, the defendant did not identify the specific nature of his objection or state that the evidence would show an uncharged crime, but the prosecutor’s opening statement to the jury clarified that the evidence would show the commission of an uncharged crime. Under those circumstances, the Supreme Court held that the defendant’s relevancy objection was sufficient to alert the court that admissibility must be determined under the criteria of section 1101, subdivision (b). (Williams, supra, 44 Cal.3d at p. 907.)
Similarly, in People v. Clark (1992) 3 Cal.4th 41, 124 (Clark), the Supreme Court held that although the defendant did not make a section 1101 objection, the trial court was sufficiently alerted to the issue by the objections actually made, and had, in fact given the jury a limiting instruction consistent with section 1101, subdivision (b).
In reliance on Williams and Clark, appellant argues the trial court was aware that the hospital outburst amounted to an uncharged crime because those acts were initially charged against him in a count 4 battery on a peace officer or emergency personnel (Pen. Code, § 243, subd. (b)) and the trial judge had presided over the preliminary hearing where the prosecution had elected not to proceed with count 4. Appellant also argues it was “plain” the evidence that appellant kicked, hit and spit at police and hospital staff was criminal conduct.
We conclude that these circumstances do not establish the trial court was made aware that defense counsel’s relevancy objection should be treated as an objection under section 1101, subdivision (b) and section 352. Consequently, appellant’s claim on those bases is forfeited on appeal. In any event, even if we disregard the forfeiture and discuss the claims on the merits, we would rule against appellant.
B. Willfulness to Resist Arrest
We review a trial court’s rulings on admission or exclusion of evidence under sections 1101 and 352 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.)
The People argue the evidence of appellant’s uncharged conduct at the hospital was relevant to whether appellant willfully resisted or delayed the officers at the time of his arrest. “ ‘ “The legal elements of a violation of [Penal Code section 148, subdivision (a)(1)] are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]” [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.]’ [Citation.]” (People v. Christopher (2006) 137 Cal.App.4th 418, 431.)
Here, the jury was instructed, in part, that to prove appellant was guilty of delaying a peace officer in the performance or attempted performance of his duties, it had to find that appellant “willfully delayed” Pucci. It was also instructed, “Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”
By testifying that he was unable to respond to the arresting officers’ commands to come out from under the tree because he was suffering an asthma attack, appellant put in issue whether he delayed his arrest willfully and on purpose. His purposeful misconduct at the hospital immediately after his arrest helps establish that his earlier failure to comply with the officers’ commands was willful and did not result from a physical inability to comply. And, despite appellant’s argument to the contrary, the uncharged acts were sufficiently similar to the charged offense to be relevant to deciding if appellant willfully resisted or delayed the officer. (People v. Jones (2011) 51 Cal.4th 346, 371 (Jones) [the least degree of similarity is needed where the evidence is offered to prove intent]; Lindberg, supra, 45 Cal.4th at p. 23 [“to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance”].)
Defense counsel had forecast this defense during opening statement.
C. Section 352
Appellant contends the unduly prejudicial nature of Neal’s testimony describing appellant’s uncharged misconduct at the hospital significantly outweighed any probative value. He contends that absent this evidence it is reasonably probable that the jury would not have convicted him on the assault and resisting arrest charges.
Notwithstanding appellant’s forfeiture of his section 352 claim, we conclude that any error was harmless. The evidence against appellant on the assault charge was strong. Although he testified at trial that he used the knife against Gonzalez to defend himself against persons wielding a metal pipe, in his statement to police he initially denied knowledge of the knife and never said he acted in self-defense. Similarly, the evidence against appellant on the resisting arrest charge was strong. The officers announced their presence three times before entering the backyard and, despite their commands that appellant come out from under the tree and show his hands, he ignored the officers and said nothing. He had to be dragged out from under the tree after being twice stunned with a Taser. Moreover, the jury’s deadlock on the attempted robbery charge indicates that it was not merely prone to convict appellant because of the evidence of his postarrest hospital misconduct. Consequently, there is no reasonable probability the verdict would have been more favorable to appellant had the court excluded the challenged evidence. (Jones, supra, 51 Cal.4th at p. 372.)
II. Limiting Instruction
Appellant next contends, assuming the evidence of his hospital conduct was admissible, the court had a sua sponte duty to instruct the jury with an instruction such as CALCRIM No. 375 on the limited use of the uncharged act evidence. He acknowledges that, generally, limiting instructions must be requested. (§ 355) However, he relies on People v. Collie (1981) 30 Cal.3d 43, 64, which states: “There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.”
Section 355 provides: “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”
Appellant argues this is such a case because his hospital outburst was highly prejudicial and not relevant to any issue at trial. He argues it is reasonably probable that the giving of a limiting instruction would have led the jury to use the challenged evidence for a proper purpose and not to establish his criminal propensity. We disagree and conclude that this is not the type of extraordinary case requiring a sua sponte limiting instruction. As we discussed previously, the evidence against appellant on both the assault and resisting arrest charges was strong. Appellant’s postarrest combative conduct at the hospital was more than minimally relevant to establishing whether he willfully delayed being arrested; and the evidence of his placement in full body restraints at the hospital was not highly prejudicial, particularly in light of the evidence that he was twice stunned with a Taser in order to be taken into custody. The court had no sua sponte duty to instruct the jury with a limiting instruction such as CALCRIM No. 375.
III. Due Process
Appellant next contends admission of the other crimes evidence and the absence of a limiting instruction violated his federal and state rights to due process and, as a result, we may affirm his conviction only if the claimed errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) The Chapman standard is stricter than the standard generally used in California, under which evidentiary error is reversed only if it is reasonably probable a more favorable result would have been reached by the appealing party absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); accord, Jones, supra, 51 Cal.4th at p. 372.)
Appellant’s failure to raise a claim of due process at trial in connection with the admission of this evidence waives any additional challenge on that basis. (People v. Rowland (1992) 4 Cal.4th 238, 265, fn. 4, People v. Raley (1992) 2 Cal.4th 870, 892.)
Appellant’s waiver notwithstanding, he relies on Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202. In Garceau, the Ninth Circuit reversed the denial of the defendant’s petition for a writ of habeas corpus in connection with a murder conviction, holding that the defendant’s due process rights were violated by the trial court’s instruction that invited the jury to consider evidence of previous crimes the defendant had committed to determine his “ ‘character or any trait of his character’ ” or his “ ‘conduct on a specific occasion.’ ” (Garceau, at p. 773, italics omitted.) Garceau also noted that the instruction violated section 1101, subdivision (a). (Garceau, at pp. 774-778.)
Garceau is neither binding on this court (People v. Avena (1996) 13 Cal.4th 394, 431) nor is it applicable here. There was no instruction affirmatively advising jurors that they should consider the evidence of other offenses for any purpose, including defendant’s character. Further, unlike Garceau (where defendant preserved his challenge by objecting to the erroneous instruction), appellant here did not ask for the desired instruction. He thus did not preserve his challenge, as we noted above.
As to the evidence itself, we have already concluded the evidence was admissible under section 1101, subdivision (b), and any error in failing to exclude its admission under section 352 was harmless under the Watson standard. For the same reasons, any error is harmless under the higher Chapman standard. Consequently, appellant’s due process claim fails.
IV. Ineffective Assistance of Counsel
Finally, appellant contends defense counsel’s failure to raise section 1101 and section 352 objections to the admission of his conduct at the hospital and failure to request a limiting instruction constituted ineffective assistance of counsel.
“An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) “In determining whether counsel’s performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel’s deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.]” (Id. at p. 1147.)
The standard of appellate review of a claim of ineffective assistance of counsel is well established. “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of professional assistance.’ ” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
The evidence of appellant’s postarrest conduct at the hospital was admissible under section 1101, subdivision (b) to show his earlier failure to respond to the officers’ commands was willful. Consequently, defense counsel was not ineffective in failing to object to the evidence on that ground. We have concluded that had the court admitted the evidence over a section 352 objection and denied a defense counsel request for a limiting instruction, any errors would have been harmless. Thus, we conclude appellant has failed to demonstrate prejudice from defense counsel’s failure to object under sections 1101 and 352 and to request a limiting instruction.
DISPOSITION
The judgment is affirmed.
We concur. NEEDHAM, J., BRUINIERS, J.