Opinion
B296708
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. RONALD CARR, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Blake Armstrong, David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA091676) APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Blake Armstrong, David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Ronald Carr of stalking (§ 646.9, subd. (b)), criminal threats (§ 422, subd. (a)), domestic battery (§ 243, subd. (e)(1)), and violation of a protective order (§ 166, subd. (c)(4)). On appeal, Carr contends we must reverse the judgment for three reasons. First, Carr argues the People withheld information about a material witness's felony conviction in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Second, Carr contends that if we conclude there was no Brady violation, he was deprived of effective assistance of trial counsel for his lawyer's failure to timely discover the witness's felony conviction. Finally, Carr urges us to reverse because he argues the witness's testimony was inherently improbable, rendering the evidence insufficient to sustain the convictions. We disagree with each of Carr's contentions, and will affirm.
Statutory references are to the Penal Code.
BACKGROUND
A. Factual Background
Carr met Penny C. and moved into her mobile home in early 2016. Within one or two months of moving in with Penny, Carr began abusing her.
Carr invited one of his sons to also live in the home, and another of Carr's sons later called and asked Penny to stay in the home. One of Carr's sons lived in the home for six months, the other for three months. Both sons were out of Penny's home by June 2017.
One evening in April 2016, Penny's primary means of transportation—a bicycle—broke, causing her to be hours late arriving home. On her arrival, Carr accused her of cheating on him, called her a "slut," a "fucking bitch," and a "ho," and put his hand over her mouth and his arms around her neck and began suffocating her. Police arrested Carr, and on April 29, 2016, he was convicted of domestic battery under section 243, subdivision (e)(1), and was served with a protective order to stay away from Penny and her home.
At the direction of police, Penny packed Carr's belongings and left them outside on her back patio for Carr to retrieve when the April 2016 incident happened. Carr never removed his belongings, and they were still sitting on Penny's patio in February 2019.
Carr returned to Penny's home on May 14, 2016. Penny told Carr it was illegal for him to be at her home. He threw her to the floor, grabbed her by the hair "so hard that [she felt] like it was detaching from [her] skull," and punched her in the hip. Carr told Penny he wanted to "break [her] face." Penny stayed on the floor to avoid confronting him again. The next day—May 15, 2016—when she tried to prevent Carr from taking her bicycle, Carr called Penny a "dried-up prune" and a "cunt" before elbowing her in the back of the head. Carr eventually returned with Penny's bicycle. He followed her to a nearby market, where he became angry with her again, lifted her shirt to attempt to expose her breasts, and told other shoppers nearby that Penny was a "whore and a prostitute." Penny rode from the store to a police station, where Carr found and confronted her, called her a whore, asked her who she was sleeping with, and took her backpack from her. Penny was so frightened she urinated on herself. As the two struggled over Penny's backpack, police intervened and arrested Carr. On June 1, 2016, Carr was convicted of willful infliction of corporal injury under section 273.5, subdivision (a), and served with another protective order to stay away from Penny and her home.
Carr returned to Penny's home on August 2, 2016, and she again told him to leave: "You can't be here," she said. "You have a restraining order." Carr threw a spray can that hit Penny in the face and dislocated her thumb, and again put his hand over Penny's face, preventing her from breathing. Penny called 911, and Carr was arrested again. On January 13, 2017, Carr was again convicted of willful infliction of corporal injury under section 273.5, subdivision (a), and served with a protective order to stay away from Penny and her home.
Carr returned to Penny's home again on June 17, 2017, and Penny again told him to leave. Carr resisted, accused Penny of putting him in jail, and became angry with her for reporting him to the police. He eventually left, but returned on June 21, 2017. On June 21, Penny found Carr sleeping in her bed and again told him to leave her home. Carr called Penny a "whore," a "bitch," and a "ho," and told her he could be there if he wanted to be there. Carr again punched Penny in the hip, and she again called 911. Carr fled.
On August 25, 2017, Penny again found Carr sleeping in her bed. She again called the police. And Carr was again arrested and in September 2017 was convicted of violating a protective order under section 166, subdivision (c)(1). He was served with another protective order to stay away from Penny and her home.
Carr returned to Penny's home on January 7 and 14, 2018. On January 7, Penny left to check her mail and Carr was in her home when she returned. Penny demanded that Carr leave, and he did. On January 14, Carr returned again, and either Penny or her domestic violence advocate called the police again. Carr was again arrested, again convicted of violating a protective order under section 166, subdivision (c)(1), and served with a protective order on February 7, 2018.
On February 16, 2018, Carr returned to Penny's home twice. The first time, Penny told Carr she would call the police and he left. The second time, Penny called the police and Carr was arrested. He was again convicted of violating a protective order under section 166, subdivision (c)(1), and was served with another protective order on March 21, 2018.
Carr returned to Penny's home on April 23, 2018. Penny told him to leave, and he did. On April 29, 2018, he returned again. He left after Penny called the police.
On May 22, 2018, Carr returned and Penny again told him to leave before hiding in her bedroom. She eventually came out of her bedroom and told Carr again that he had to leave. Penny called the police, and Carr was arrested again. On June 28, 2018, Carr was convicted of violating a protective order under section 166, subdivision (c)(1), and was served with another protective order.
On July 18, 2018, Carr returned and again attacked Penny. After verbally assaulting Penny, Carr threw a wire hanger that hit Penny in the collarbone; Penny called 911. Police again arrested Carr.
On September 14, 2018, Carr was again convicted of violating a protective order under section 166, subdivision (c)(1), but it is unclear from the record whether that was connected to the July 18, 2018 incident or some other incident.
On October 1, 2018, Penny returned home after walking her dogs and found her doors open and Carr in her home. Carr pushed Penny against the wall and grabbed her glasses from her face and smashed them. Carr spit in Penny's face, grabbed a metal bar (the bar Penny used to secure a sliding glass door in her home) and swung it at Penny, telling her he "want[ed] to break [her] face." Penny fled her home through the sliding glass door. A neighbor called police. As Penny hid behind a nearby car and police arrested Carr, he yelled: "Penny, you're a whore, and a bitch and a lying ass cunt, fucking skank-ass bitch . . . [¶] . . . [¶] Penny C. is a whore! A whore! A straight whore! Penny's a bitch and a whore! Penny C. is a whore! Straight whore. Penny C. is a whore! Penny C. is a fucking whore!"
Penny explained that as the events continued in 2017 and 2018, she became more reticent to call police. "I would hold off a little bit because I didn't know what to do," she testified. "I didn't know if I would get hurt more, if he would hit me again . . . so it would take me a while, sometimes, to call. [¶] I had fear about calling because I didn't want to get hurt." When Carr would come back to her home after serving jail time for an incident, he would tell Penny that he "had to serve [time in jail] because of" Penny, and then he would hit her or threaten to "break [her] face." Penny testified that there were incidents every day, but that her fear of Carr and her fear of causing problems in her neighborhood stopped her from calling police.
Penny also wrote letters to Carr when he was in custody, hoping to make peace with him: "[I]f he got out and he was going to come back, I needed some kind of plan of protection," she said, "hoping he would have solace and be able to mellow out because every time he came back to my house, this is what I went through." At one point while Carr was in prison, Penny obtained a mobile telephone for him because he asked her to; she testified that "[h]e wanted [her] to have a phone for him and [she] said that [she] did that to appease the whole situation so he wouldn't get mad at [her]."
B. Procedural Background
The People charged Carr in a four-count information with: (1) stalking (§ 646.9, subd. (b)), (2) criminal threats (§ 422, subd. (a)), (3) battery (§ 243, subd. (e)(1)), and (4) violation of a protective order with five prior convictions (§ 166, subd. (c)(4)). The information also alleged that Carr had personally used a deadly and dangerous weapon—the aluminum sliding glass door bar—when he criminally threatened Penny.
Evidence opened in Carr's trial on February 25, 2019 with Penny's testimony. The People rested on February 26, 2019.
On the morning of February 27, 2019, Carr moved for a mistrial based on a violation of Brady, supra, 373 U.S. 83. The People acknowledged that Penny had a 2013 conviction for possession of explosives under section 18715 and that the People had failed to disclose the information to Carr's counsel. The trial court denied the motion for mistrial, but concluded that the prior felony conviction was admissible.
Discovery provided to Carr showed a 2013 arrest for a violation of section 18715, subdivision (a) and a booking number, but not the felony conviction.
Based on the trial court's ruling, Carr called Penny as a witness to testify about her felony conviction. Penny admitted the felony conviction and testified about the facts leading to the conviction. Penny admitted on examination by Carr's counsel that she had initially lied to police about the incident (the police showed her video evidence that contradicted her statement, and she admitted her lie). Penny pled guilty to a felony and gave the police information about the person she said left the explosive devices in her home.
On March 1, 2019, the jury found Carr guilty of all four counts. The trial court sentenced Carr to five years eight months in state prison.
Carr filed a timely notice of appeal.
DISCUSSION
1. Brady
"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material ' "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." ' " (People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar); also People v. Wright (1985) 39 Cal.3d 576, 590.)
Carr contends on appeal that the prosecution's failure to disclose Penny's felony conviction before trial was a Brady violation. Timely disclosure, Carr argues, could have changed the plea offers the People extended to Carr or how the jury viewed Penny's testimony. Carr explains that he could have focused voir dire on selecting jurors who disbelieve witnesses with felony convictions, and could have been more aggressive in his opening statement and cross-examination during the People's case. The People counter that there was no Brady violation. Disclosure of evidence at trial (as opposed to before) does not constitute a Brady violation, according to the People, if the defendant is not prevented from effectively using the material at trial. As we explain, we agree with the People.
"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." (Salazar, supra, 35 Cal.4th at p. 1043.) The People have focused their argument here on the second component—whether the evidence was suppressed.
In People v. Mora and Rangel (2018) 5 Cal.5th 442, 467-468 (Mora), our Supreme Court considered the untimely disclosure of various materials—fingerprint testing reports, diagrams, and police reports containing witness statements. Like Penny's felony conviction here, the fingerprint testing report in Mora was not disclosed until after the prosecution rested at trial. (Id. at p. 465.) "When they received the fingerprint report, Mora and Rangel requested a mistrial. They argued that the 'continuum' of discovery violations warranted relief, and specifically that the failure to timely disclose the fingerprint report impaired their ability to effectively cross-examine police officers who testified during the prosecution's case-in-chief. The court declined to grant a mistrial." (Id. at p. 466.)
The Supreme Court concluded that "[e]vidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously disclosed during discovery." (Mora, supra, 5 Cal.5th at p. 467.) "[W]hen considering whether delayed disclosure rather than 'total nondisclosure' constitutes a Brady violation, 'the applicable test is whether defense counsel was "prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case." ' " (Ibid.)
In Mora, "no prejudice arose from the instances of delayed disclosure," including the disclosure after the prosecution rested of the fingerprint testing report: "The prosecution's failure to disclose the fingerprint reports during the normal course of discovery did not result in prejudice to defendants. The fingerprint report was made available to the prosecutor and defense counsel as soon as it was discovered to have been unintentionally omitted, and the court admitted it with an admonition to the jury regarding its untimely disclosure. Accordingly, no Brady error resulted." (Mora, supra, 5 Cal.5th at p. 467.)
We reach the same conclusion here; we find no prejudice to Carr from the delayed disclosure. The trial court allowed Carr to recall Penny, and she told the jury about her felony conviction in great detail. She testified under vigorous cross-examination that she had lied to police, that she had transported explosives from her home to an area near her home, and that she had pled guilty to a felony for it. Carr used Penny's felony conviction and the things she did that led to that conviction to their greatest possible impeachment effect. But the jury also heard recordings of 911 telephone calls, saw and heard about a litany of convictions for abusing Penny and violating the resulting protective orders, and watched video of Carr's arrest where Penny was told to hide behind a car and Carr repeatedly screamed profanities at her and the police. The jury saw physical evidence and heard from a police officer who watched Carr attack Penny in front of a police station. The jury could have easily believed Penny's testimony in spite of Carr's effective impeachment.
Carr also contends that the People's plea offers would have been more generous had the People disclosed Penny's felony convictions before trial. "We are mindful and aware 'of the difficulty of reconstructing . . . the course that the defense and the trial would have taken' [citation] had the Brady material been timely provided." (People v. Harrison (2017) 16 Cal.App.5th 704, 711.) But argument about plea offers the People might have made under different circumstances is "speculation and not supported by the record." (Ibid.)
Carr has listed several ways his defense strategy would have been different had his counsel known about Penny's felony conviction before trial rather than during trial. But he has not demonstrated that his counsel was unable to use the evidence to effectively prepare and present Carr's defense. Consequently, we find no Brady error.
2. Ineffective Assistance of Counsel
A claim that counsel was ineffective requires a showing by a preponderance of the evidence of objectively unreasonable performance by counsel and a reasonable probability that but for counsel's errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.)
Carr argues that if we conclude the People had no pretrial obligation to disclose Penny's felony conviction, we should conclude Carr's defense counsel was ineffective "for failing to take note of the information [contained in the discovery that showed a booking number, but no information about a conviction] and take advantage of it until" trial. We did not reach the predicate conclusion; the People do not dispute that they were obligated to disclose Penny's felony conviction before trial and that they did not do so. Consequently, we need not reach Carr's ineffective assistance assertions.
We note, however, that it would have taken either good luck or exceptional diligence for Carr's counsel to locate information about Penny's felony conviction before she did. On the record before us, we cannot find objectively unreasonable performance by Carr's counsel. To the contrary, Carr's attorney skillfully prepared an examination of Penny based on her felony conviction that demonstrated to the jury that not only was Penny a convicted felon, but also that Penny had lied to police in the course of the investigation leading to her felony conviction. Carr's counsel used Penny's felony conviction to its best and highest effect. We find no error by Penny's counsel, and thus reject Carr's ineffective assistance of counsel claim.
3. Sufficiency of the Evidence
Carr argues that the evidence in the record is insufficient to support his convictions because Penny was the People's primary witness and her testimony was "inherently improbable."
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Ibid.)
" 'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently probable, testimony of a single witness is sufficient to support a conviction.' " (People v. Jones (2013) 57 Cal.4th 899, 963.) "The standard for rejecting a witness's statements on this ground requires ' " 'either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' " ' " (People v. Thompson (2010) 49 Cal.4th 79, 124 (Thompson).) "The only question is: Does it seem possible that what the witness claimed to have happened actually happened?" (People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
Carr contends Penny's testimony was inherently improbable based on a variety of things he contends undermines her credibility. Penny testified that she was being abused by multiple people other than Carr, but never reported those abuses to police; that Carr received mail at the home and that his children were living there for some time; that she sent him letters in jail signed with "love," and opened a new phone plan with a phone for him; that she occasionally had consensual sex with him; and that she lied to police leading to a felony conviction. Each of these is an attack on Penny's credibility that relies on inferences and deductions. As in Thompson, Carr's contention that Penny's "testimony was inherently incredible, depends on the asserted inconsistencies that" Carr argues exist in the evidence. (Thompson, supra, 49 Cal.4th at p. 125.)
Penny's credibility was fully litigated to the jury, and the jury chose to believe it. In response to our charge here, we conclude Penny's testimony was credible. Indeed, Penny's testimony was corroborated by multiple protective orders issued by courts after repeated convictions for domestic abuse and violations of those protective orders. Penny told a story of a cycle of abuse that lasted almost three full years, of seeking police assistance, of Carr's retribution for her seeking police assistance, and of techniques she used to try to avoid Carr's wrath. All of that testimony, and the swath of corroborating evidence and testimony the People presented, supports Carr's convictions here. As in Thompson, "[w]e reject defendant's attempt to reargue the evidence on appeal and reiterate that 'it is not a proper appellate function to reassess the credibility of witnesses.' " (Thompson, supra, 49 Cal.4th at p. 125.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------