Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. MCR-446771
Ruvolo, P. J.
I.
Introduction
Appellant Daniel Brian Van Guilder was convicted by jury of five counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a) ), six counts of assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and one count of making criminal threats (§ 422). Various sentencing enhancements were found true. All of appellant’s convictions arose from an incident during which appellant went on a rampage in his vehicle, attempting to run down numerous victims, including his four-year-old daughter and six-year-old stepdaughter. After being sentenced to 21 years, 4 months plus two consecutive life terms, appellant filed this appeal.
All statutory references are to the Penal Code.
The jury found that two of the attempted murders were committed willfully, deliberately and with premeditation, that appellant personally used a dangerous weapon in all of the attempted murders, and that appellant used a knife in connection with making criminal threats.
On appeal, appellant claims that this case should be dismissed because of the “[o]utrageous government misconduct” of the prosecutor in listening to privileged attorney/client communications. He also claims that “[t]his is not the kind of case that enables the jury to draw reasonable inferences that appellant possessed the specific intent to kill” necessary to support his conviction for three of the counts of attempted murder. Error is also alleged in giving and omitting certain jury instructions. Lastly, appellant claims he received ineffective assistance of counsel at trial because of counsel’s failure to pose timely and appropriate objections to “ensure that highly objectionable and inflammatory evidence was kept from the trier of fact.” We reject these arguments and affirm.
II.
Facts and Procedural History
By July 2004, appellant’s marriage to Jane Doe had deteriorated and he was living outside the home. They had a daughter together, age four, and Jane Doe had a daughter, age six, from a prior relationship.
On July 30, 2004, appellant called Jane Doe and asked her to bring him some items of property, including a television. Jane Doe reluctantly agreed after appellant promised not to be there during the drop off. Jane Doe arrived with the two girls and the property at about 7:15 p.m. As she began to unload her van, appellant showed up and began talking with Jane Doe. At one point, he asked her to hug him, but she refused his advances. He also spoke with the girls, who were happy to see him and asked him when he was coming home.
Jane Doe said, “No, I can’t do this. I have to go.” Appellant started cursing and threatening to kill himself. She got in the van with the girls and left. Appellant was very angry and went into his trailer and grabbed a bottle of pills. In the presence of his roommate, he threatened to kill himself.
When Jane Doe was stopped at a red light on her way home, appellant pulled up alongside of her and began screaming that he was going to kill himself and that he wanted her to watch. He started dumping a vial of pills down his throat and washing them down with soda. The girls were screaming and crying.
When the light turned green, Jane Doe drove into a shopping center parking lot in an effort to get help. As Jane Doe pulled into the parking lot, appellant began to ram the rear of her van with his Blazer. She described appellant’s 1986 Blazer as “a real big vehicle” as appellant had “it lifted up higher and it has chrome rails across the front of the vehicle and he has step ups on it because it’s so high up in the air.” He continued to ram the van repeatedly with such force that Jane Doe was fearful that her van was going to tip over. During one of the rams, the van’s rear window shattered, showering glass throughout the interior of the vehicle and onto the girls.
Jane Doe stopped in the parking lot and got out of the van in an effort to calm appellant, and to divert his attention away from the girls, thereby giving them a chance to exit the van. At some point, when Jane Doe was at the passenger side door of the Blazer trying to calm appellant, he pulled on her shirt, ripping it, and then hit her several times in the chest, causing bruising. Appellant told Jane Doe to get into the Blazer, or he was going to kill the girls. He displayed a knife when the threat was made.
Kory Hopkins and his wife saw Jane Doe’s van being rammed in the parking lot. His wife said “we need to help them,” so Kory drove his Yukon to the area of the altercation and parked. He approached appellant, attempting to diffuse the situation. When appellant told him to “shut the fuck up,” he returned to his vehicle.
The girls opened the van door and ran out screaming and crying. They were brought over to Kory Hopkins’s Yukon and were being comforted by Hopkins and his wife, as well as three ladies who ran over to help––Kathy Rich, Amber Eames and Brittany Guerrero. Everyone was congregated around the Yukon’s driver’s side door.
Appellant then accelerated and headed straight for the group. Amber Eames ran to her left towards the front of the Yukon in order to get out of the way of the speeding Blazer. Kathy Rich picked up the four-year-old and placed her on her hip and pulled the six-year-old by her hand and they jumped out of the way of the speeding Blazer. Kathy Rich estimated the Blazer missed her and the girls by less than two feet before crashing into the driver’s side of the Yukon in the exact location where they had been standing. Kory Hopkins, who had jumped into the open door of his Yukon in an attempt to move his vehicle, was knocked momentarily unconscious and woke up on the pavement. The Yukon was totaled.
Police arrived on the scene, which one officer described as “mass chaos,” and were directed to appellant, who was seated in his Blazer. After a brief struggle, officers were able to remove appellant forcibly from the Blazer, and to place him under arrest. After his arrest, appellant was taken to an emergency room where he was treated for an overdose of Seroquel. His blood test was positive for Quetiapine and Lorzepam, both of which are prescription antipsychotic medications.
There was no material issue at trial as to appellant’s participation in the charged offenses. Appellant’s defense instead centered on his purported inability to form the requisite mental state for attempted murder. Specifically, the defense claimed that he could not premeditate and deliberate and that he did not harbor the specific intent to kill. Defense counsel indicated “there is nothing in the evidence to suggest that this man who’s suicidal, who’s agitated, who’s full of Seroquel is making a conscious decision, having reflected, to kill anyone.” Counsel claimed “it was an act of desperation, it was a man who lost everything, had nothing left, and was acting out in a rage.”
III.
Discussion
A. Prosecutorial Eavesdropping
Appellant first claims that “[i]n the instant case, appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments to the federal constitution and his rights under Article I, sections 1, 7, and 15 to the California Constitution were violated when the Sonoma County Sheriff’s Office eavesdropped upon his confidential attorney-client communications in violation of the California Penal Code. (§ 636, subd. (a).)” He argues further that “the outrageous conduct on the part of the prosecutorial team mandated dismissal of the charges against appellant.”
On March 21, 2005, District Attorney Investigator Kim Dayton requested that the jail check all phone calls made by appellant since his incarceration on July 30, 2004. On March 29, 2005, Investigator Dayton received a CD on which the telephone conversations were recorded. In reviewing the CD, she heard about 25 to 30 seconds of a call appellant made to defense counsel. As soon as she heard defense counsel’s voice, she stopped listening.
It is well established that a jail may monitor and record a prisoner’s telephone calls. (People v. Plyler (1993) 18 Cal.App.4th 535, 542.) It is also entirely permissible for the prosecution to obtain these calls and seek to introduce them against the prisoner at trial. (People v. Riel (2000) 22 Cal.4th 1153, 1184.) However, it is equally as well established that the jail may never record a prisoner’s conversations with his or her attorney. (§ 636; People v. Jordan (1990) 217 Cal.App.3d 640, 646.)
That same day, Investigator Dayton sent an e-mail to Robert Waner, the deputy district attorney prosecuting the case. In that message, she stated that while randomly listening to the telephone conversations provided by the jail, she heard a portion of a conversation between appellant and his attorney, Jill Ravitch. She described the content of the conversation as appellant talking with Ms. Ravitch about retaining her. Investigator Dayton also wrote that she “will not discuss anything I heard in the phone call with anyone.” She also indicated she had checked the phone call print out and found other telephone calls to Ms. Ravitch’s telephone number.
On March 30, 2005, Investigator Dayton sent another e-mail to Mr. Waner informing him that she had found an additional four telephone calls to the attorney’s telephone number. Later that day, Ms. Ravitch received a telephone call from Mr. Waner alerting her to the fact that the District Attorney’s Office was in possession of recordings of her telephone conversations with her client. In this message, Mr. Waner stated that Investigator Dayton had notified him of the problem and that she had not relayed to him anything that she had heard.
On April 7, 2005, all appellant’s recorded jail phone calls were turned over to the court and sealed. On July 29, 2005, the defense filed a motion to dismiss the case alleging prosecutorial misconduct. At a hearing held on October 3, 2005, the court, in camera, listened to seven recorded phone calls between appellant and his defense counsel.
At that hearing, testimony was received from Judy Brubaker, the Information Bureau Manager for the Sonoma County Jail regarding the jail’s telephone recording system. She testified that beginning in May 2004, the Sonoma County Jail implemented a new jail telephone system, whereby inmate calls are recorded and stored in Alabama. Under the new telephone system, instead of tracking inmate’s calls by the outgoing telephone number, each prisoner was assigned a pin number and calls were tracked by pin number. Thus, all of a particular inmate’s telephone calls could be retrieved without knowing the telephone numbers that the inmate called.
The inmate phone system records all phone calls from inmates except for those that are made to numbers on the “do not record” list. That list includes numbers for attorneys, public defenders, and probation officers. Attorneys who call the jail and follow up with a letter on letterhead will be put on the “do not record” list after the jail verifies that they are attorneys. In the current case, appellant’s counsel’s phone number was not on the “do not record” list and her phone calls were accidentally recorded by the jail. As soon as it was learned from the district attorney that calls from appellant to his counsel were being recorded, his counsel’s number was placed on the “do not record” list.
In denying appellant’s motion to dismiss the case, the trial court concluded that there was no prosecutorial misconduct. The court found credible Investigator Dayton’s testimony that she accessed only one conversation between appellant and his attorney and; based on the court’s in camera review, the court found that there was nothing in that conversation that would result in prejudice to appellant. The court then stated that defense counsel could object to any specific item of evidence that she believed might have been discovered as a result of the phone conversation, and that the prosecutor would have the burden of proving that the evidence came from a source other than the recorded conversations. We review a trial court’s determination on this issue to see whether it is supported by substantial evidence. (People v. Jordan, supra, 217 Cal.App.3d at p. 646.)
There can be little doubt that intentional conduct by a prosecutor to discover privileged work product or attorney-client communications may sometimes require the trial court to dismiss the case. When conduct by a prosecutor “is so outrageous as to interfere with an accused’s right of due process of law, proceedings against the accused are thereby rendered improper.” (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429 (Boulas).) “Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases.” (Ibid.) This type of due process violation, however, requires the court to conclude that the prosecutor’s conduct shocks the court's conscience. (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1261 (Morrow).) The remedy of dismissal is inappropriate absent demonstrable prejudice or a substantial threat thereof. (People v. Zapien (1993) 4 Cal.4th 929, 967.)
For example, outrageous conduct of the type requiring dismissal has been found where an undercover police agent posed as a codefendant, and sat in on confidential attorney-client meetings. (Barber v. Municipal Court (1979) 24 Cal.3d 742, 745, 752.) Dismissal of the charges was found to be an appropriate sanction when governmental authorities contacted the defendant outside of the presence of his attorney to advise him to fire his attorney. (Boulas, supra, 188 Cal.App.3d at pp. 429, 435.) Another example of outrageous conduct mandating reversal involved a prosecutor intentionally directing her investigator to eavesdrop on the appellant’s discussion of a plea bargain offer with counsel. (Morrow, supra, 30 Cal.App.4th at pp. 1257-1258, 1363.)
The facts of the case before us are far removed from the egregious prosecutorial misconduct condemned by the court in Boulas, or from the surreptitious and deliberate eavesdropping criticized in Barber and Morrow. Indeed, this case shares many more similarities with the case of People v. Benally (1989) 208 Cal.App.3d 900 (Benally).
In Benally, the defendant’s attorney and his investigator held a conference in one of the interview rooms at the police station. (Benally, supra, 208 Cal.App.3d at pp. 905-906.) Unbeknownst to the attorney or his investigator, a police officer overheard their conversation because tape recording equipment for that room was accidentally left on and their conversation was recorded. (Id. at p. 906.) After listening to the conversation for about 30 seconds, the officer claimed he turned off the equipment, although there was no break in the tape to corroborate this story. (Ibid.) The officer claimed to have heard the general facts of the case, but nothing about defense strategy. (Ibid.) The tape, on the other hand, was replete with attorney work product in the form of discussions about the defense strategy. (Id. at p. 907.) The officer gave the tape to a deputy district attorney who claimed not to have listened to it. (Id. at p. 906.)
In denying a motion to dismiss the case, the court specifically found that the defense meeting had not been intentionally recorded. (Id. at p. 907.) The court also found the prosecution had not gained an unfair advantage because there was no evidence that anyone in the district attorney’s office had listened to the tape. (Ibid.) The court directed the officer not to discuss the tape with anyone in the district attorney’s office and directed the defendant to request a hearing if he believed any evidence or questions may have been inspired by the contents of the tape. (Id. at pp. 906-907.)
The appellate court concluded that the trial court properly refused to dismiss the case. (Benally, supra, 208 Cal.App.3d at pp. 909-911.) As to the defendant's Sixth Amendment claim of the violation of his right to counsel, the court relied on Weatherford v. Bursey (1977) 429 U.S. 545, which held “that infringement of a defendant’s right to counsel does not require dismissal per se.” Rather, “a showing of prejudice [is] essential to establish a claim that one's Sixth Amendment rights had been violated.” (Benally, supra, 208 Cal.App.3d at p. 908.) Such prejudice could be based on a showing the attorney-client conversations were presented at trial, were used for other purposes to the detriment of the defendant, or provided the prosecutor with information about the defense strategy. (Ibid.) The court determined that dismissal was not appropriate because there was no showing of prejudice. The officer did not testify at trial about the conversation, none of the prosecution’s evidence originated from the evidence on the tape, nor was there any showing that the taped conversations were used in any way which prejudiced the defendant. (Id. at p. 909.)
Drawing from the reasoning in Benally, we conclude the trial court properly denied the motion to dismiss this case. While it is true the district attorney’s investigator obtained privileged information when she obtained the CD of appellant’s recorded telephone conversations, there has been no conduct by the district attorney which was intentional, outrageous, shocking to the conscience or otherwise egregious. Here, as in Benally, the recording of privileged attorney-client conversations was accidental; at most negligent.
Moreover, the trial court expressly credited the investigator’s testimony that she accessed only one conversation, and that there was nothing divulged in that conversation that could be used to prosecutorial advantage. We refuse to engage in speculation that the district attorney may have listened to the recorded attorney-client communications, contrary to the testimony credited by the court. As in Benally, the trial court invited appellant to renew the motion to dismiss the action in the event the prosecution presented its case in a manner that reflected an awareness of the contents of the tape recorded telephone conversations. Appellant did not make any such motion at trial. Under these circumstances, we will not presume prejudice occurred, and applicable legal authority does not require such a presumption. (See, e.g., People v. Zapien, supra, 4 Cal.4th at p. 967 [prosecution met its burden of proving that its misconduct had not caused any prejudice to the defendant].)
B. Sufficiency of the Evidence to Support Attempted Murder Convictions
Appellant next claims that three of his five convictions for attempted murder should be reversed. He asserts that there is insufficient evidence to support the finding of an attempt to kill the non-family members at the scene who placed themselves in extreme danger in an attempt to protect appellant’s children from his oncoming vehicle. He claims that the “evidence in the instant case did not demonstrate that appellant used lethal force of a type and extent calculated to kill everyone in the area. As the group scattered there was no testimony that appellant turned his vehicle in any manner to attempt to hit Kathy, Amber, Kory, and/or the two girls. This is not the kind of case that enables the jury to draw reasonable inferences that appellant possessed the specific intent to kill Kathy, Amber and Kory.” In determining whether the prosecution met its burden, the test is whether a rational jury could have found beyond a reasonable doubt that defendant harbored the requisite specific intent to kill. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In order to prove an attempted murder charge (§§ 664, 187), there must be sufficient evidence of “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “The mental state required for attempted murder has long differed from that required for murder itself.” (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) For murder, malice may be express or implied. “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another.” (People v. Lasko (2000) 23 Cal.4th 101, 104.)
To be guilty of attempted murder, the defendant must harbor express malice; implied malice will not suffice. (People v. Swain (1996) 12 Cal.4th 593, 604-605.) Express malice, or intent to kill, requires more than knowingly placing the victim's life in danger: it requires at the least that the assailant either “ ‘ “desire the result,” ’ ” i.e., death, or “ ‘ “know, to a substantial certainty, that the result will occur.” ’ ” (People v. Davenport (1985) 41 Cal.3d 247, 262.)
The courts also “distinguish between a completed murder and attempted murder regarding transferred intent.” (Bland, supra, 28 Cal.4th at p. 328.) “In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.” (Id. at p. 317.) Transferred intent, however, does not apply to attempted murder: “To be guilty of attempted murder, the defendant must instead intend to kill the alleged victim, not someone else.” (Id. at p. 328.) Consequently, the defendant’s mental state “must be judged separately as to each alleged victim.” (Id. at p. 331.) In examining this case, it follows that appellant’s specific intent to kill his daughter and stepdaughter, which was adequately proven by the evidence, does not “transfer” to provide the specific intent to kill the non-family members who came to their aid—the prosecution was required to prove appellant’s mental state as to them individually. (Ibid.)
However, as respondent points out, the prosecution can prove specific intent to kill under a concurrent intent theory. Our Supreme Court in Bland explained that multiple attempted murder convictions may be sustained on a “kill zone,” or “concurrent intent,” theory when the evidence shows the defendant used lethal force of a type and extent calculated to kill everyone in an area, including but not limited to the victim shown to be the defendant's primary target, as a means of accomplishing the killing of the primary target. (Bland, supra, 28 Cal.4th at pp. 330-331.) Under such circumstances, a rational jury can conclude beyond a reasonable doubt that the defendant intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. (Id. at pp. 329-330; People v. Smith (2005) 37 Cal.4th 733, 745.)
The Bland court mentioned several extreme examples—such as placing a bomb on a commercial airline, spraying a group with automatic weapon fire, or using an explosive device devastating enough to kill everyone in a group—as establishing circumstances for drawing a reasonable inference of concurrent intent to kill others not primarily targeted. (Bland, supra, 28 Cal.4th at pp. 329-330.) However, Bland acknowledged the rule was not limited to such examples: “ ‘Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’ ” (Id. at p. 330.)
During closing argument, the prosecutor argued the evidence showed that appellant “was going for the girls and anybody in the way,” thus arguing that even if appellant intended to kill the two little girls, his primary targets, he could also have had the concurrent intent to kill everyone else in the vicinity. Appellant argues there was insufficient evidence to support the attempted murder convictions as to the non-family members, Kory, Kathy, and Amber, under the prosecution’s theory of concurrent intent. He claims “a vehicle that travels at a speed of twenty miles per hour . . . does not demonstrate the lethal force of a type and extent calculated to kill everyone standing in front of that car.”
We do not underestimate, as appellant apparently does, the seriousness of these crimes, and the danger presented by intentionally driving a vehicle weighing over two tons into a group of people. The manner in which appellant accelerated his jacked-up Blazer, with rails on the front, directly toward two little girls who, only moments earlier, he had threatened to kill, as well as towards innocent Good Samaritans who were in the immediate area attempting to comfort and protect them, is clearly indicative of an intent to kill everyone in the vicinity. While one eyewitness testified appellant was going “at least 20 miles an hour,” various other eyewitnesses testified that appellant “hammered the gas and went for it,” “went full speed directly at them,” that the Blazer was going “very fast,” that it was “flying full force towards the Yukon.” Indeed, the resultant collision with the Yukon was with sufficient force as to render the large SUV a total financial loss.
Therefore, we are satisfied that appellant’s method of attacking his victims was comparable to the “kill zone” examples cited in Bland: detonating a bomb on a commercial airplane (Bland, supra, 28 Cal.4th at pp. 329-330), using an explosive device or automatic weapon fire against a group of people (id. at p. 330), or spraying wall-piercing bullets at occupied houses (ibid., citing People v. Vang (2001) 87 Cal.App.4th 554, 563-565.) Under these circumstances, the factfinder could rationally infer the appellant intended to kill not only his primary targets, but also concurrently intended to kill all those in the zone of fatal harm. (Bland, supra, 28 Cal.4th at pp. 329-330.)
C. Instructional Error in Giving CALJIC No. 8.66.1
Appellant also argues that his multiple convictions for attempted murder were irredeemably tainted by the reading of CALJIC No. 8.66.1, which explains the concept of concurrent intent in relation to attempted murder. According to appellant, CALJIC No. 8.66.1 is a fatally defective instruction because it tells the jury “that it may convict for attempted murder based on a theory closely tied to implied malice.” Thus, he claims it misled the jury regarding the specific intent element of attempted murder, which diluted the prosecution’s burden of proving a specific intent to kill each victim beyond a reasonable doubt.
Over appellant’s objection, the trial court read the 2004 revised version of CALJIC No. 8.66.1 to the jury as follows: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or someone within the zone of risk is an issue to be decided by you.”
Appellant is making a claim of conflicting or ambiguous jury instructions. When we review such a claim, the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (Ibid.)
There is no need for us to determine if the giving of CALJIC No. 8.66.1 was error, because even assuming it was, there was no reasonable likelihood that the jury would have misunderstood the need for the prosecution to prove specific intent. The jury was expressly instructed that intent to kill was a necessary element of attempted murder. The jury was told that in order to find appellant guilty of attempted murder, “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime or allegation to which it relates is not committed or is not true.” The instructions elaborated that “acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill.”
The jury was also instructed on how they should consider the evidence regarding the specific intent to kill where there was a question about who the defendant had chosen as a target during his vehicular assault: “If you find that the defendant had specific intent to kill any victim, you cannot apply that specific intent to another victim. You must make a separate determination as to whether the defendant had the specific intent to kill each victim before you can find that the crime of attempted murder has been proven as to that victim.”
These instructions reinforced the requirement that the jury had to find appellant intended to kill before it could convict him of attempted murder. Additionally, the prosecutor and defense counsel both emphasized the requisite element of intent to kill. The prosecutor headlined a segment of his argument by stating the phrase: “A specific intent to kill unlawfully another human being. . . . That will be the center, I suspect, of your discussions. It will be the center of this argument.” He then discussed at length and in detail the evidence that demonstrated appellant intended to kill all five of the people grouped alongside the Yukon.
In defense counsel’s closing argument, she emphasized to the jury the need to find that appellant had a specific intent to kill insofar as appellant was charged with attempted murder. She questioned, “Did he have the specific intent to kill when this terrible thing occurred? Because if he didn’t, then the law says he’s not guilty of attempted murder.” She reiterated in factual terms the principles of specific intent and claimed appellant should be acquitted of attempted murder because “he didn’t have the specific intent to kill those children, ladies and gentlemen.”
For the foregoing reasons, we conclude that CALJIC No. 8.66.1 did not mislead the jury with respect to the prosecution's burden of proving the necessary elements of attempted murder.
D. Failure to Give Unanimity Instruction
Appellant argues that the trial court erred by not giving a unanimity instruction, such as CALJIC No. 17.01, sua sponte, with regard to the assault charges pertaining to Jane Doe and her two daughters. “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
He claims “the jury could have found appellant guilty of assault based upon two discrete sets of facts.” He explains, “In the instant case the facts indicate that appellant’s actions were not so closely connected that they formed part of one and the same transaction. Appellant’s initial “ramming” occurred. That action stopped when appellant and Jane Doe were out of their respective vehicles and an argument ensued. It is during this argument that testimony indicated that appellant ‘lined up’ Jane Doe and attempted to ‘ram’ her. After that argument ended, appellant drove toward Amber and Kathy and the two girls. Thus, the jury could have found appellant guilty of assault as to Jane Doe and the girls based upon two discrete set of facts.” In other words, appellant argues that because there was evidence of at least two separate events, a unanimity instruction was required. We disagree.
“The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) “A continuing course of conduct has been held to exist where the wrongful acts were successive, compounding, and interrelated.” (People v. Rae (2002) 102 Cal.App.4th 116, 123-124.)
In this case, all the events that could have comprised the assaults occurred in the same parking lot, were motivated by the same intent, and were within a few minutes of each other. Appellant did not assert separate defenses against the different segments of the assault, but instead his only defense was that he did not have the state of mind necessary to find him guilty of attempted murder. The two segments of the assaults, interrupted only by a brief stop where appellant and Jane Doe were arguing, were sufficiently closely connected in time and place to form one transaction and thus fall under the continuous course of conduct exception to the unanimity election rule.
E. Ineffective Assistance of Counsel
Defendant contends that he received ineffective assistance of counsel when his attorney failed to raise meritorious objections to “the opinion evidence by various witnesses that in essence stated that appellant was out to kill all five persons by the Yukon by intentionally targeting them. . . .”
The standard for showing ineffective assistance of counsel is well settled. In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.)
It has been observed that failure to object will seldom establish ineffective assistance. (People v. Williams (1997) 16 Cal.4th 153, 215.) “ ‘ “[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.” ’ ” (People v. Farnam (2002) 28 Cal.4th 107, 202, quoting People v. Riel, supra, 22 Cal.4th 1153, 1197.)
As explained by appellant, “the real question to be resolved in this case was what appellant’s mental state was at the time of the incident, could he premeditate and deliberate, and did he have an intent to kill or not.” Appellant contends defense counsel rendered ineffective assistance by failing to keep from the trier of fact “evidence that suggested premeditation, deliberation, and intent to kill.” Appellant cites numerous instances of “highly objectionable and inflammatory evidence” that he claims should have been kept from the trier of fact, thereby impairing his defense.
1) Eyewitness Rolph Dlugy-Hegwer testified that when he saw the incident, he went into a nearby store, and told them to call 911 because “someone is trying to kill someone or hit someone . . . .” There was no objection to this testimony.
Hegwer also testified that he “believed that the truck was trying to smash them against the side of the other truck or the other vehicle.” Defense counsel’s objection was sustained. The prosecutor rephrased the question, and the witness responded “I said that they were almost smashed against the vehicle.” This time, appellant’s objection was overruled.
2) Eyewitness Kathy Rich testified that one of the children said, “He’s going to kill my mommy,” and that she replied, “No. He is not going to kill your mommy.” Defense counsel did not object at the time of the testimony, but the next day asked the court to strike the comment as hearsay. The court denied the motion to strike.
3) Eyewitness Kory Hopkins testified that the older daughter was screaming that her father was trying to kill her mother. Defense counsel objected on hearsay grounds. The court overruled the objection.
4) Eyewitness Jessica Hopkins testified “[i]t looked as if he was targeting the vehicles where the ladies and the children and my husband were all kneeled in front of.” Defense counsel objected on the basis that the answer was speculative and the court overruled the objection.
5) Eyewitness James Larsen testified, without objection, that he saw the Blazer just ram into the Jane Doe’s car “intentionally.”
6) Jane Doe testified, without objection, that the second time appellant rammed the back of her car, she “knew he was attacking us . . . .”
Appellant surmises that “[w]ithout the opinion evidence by various witnesses that in essence stated that appellant was out to kill all five persons by the Yukon by intentionally targeting them, this case would be at equipoise. With proper lawyering it is reasonably likely that the results of the proceeding would have been different.”
While the record reflects defense counsel did object to many of these statements and was overruled, appellant faults his counsel’s performance because she “was not prepared sufficiently to know the appropriate objections to make so that the court to [sic] rule in appellant’s favor. Therefore, counsel’s performance was deficient.” (Italics added.) However, appellant discusses only broad evidentiary principles. He fails to specify the grounds for appropriate objections which would have resulted in a favorable evidentiary ruling, let alone which would have affected the outcome of his trial. This defeats his claim of ineffective assistance of counsel. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 [failure to specify grounds for objection and show its merits on appeal defeats ineffective assistance of counsel claim].)
In any event, separate and apart from the testimony of the eyewitnesses, the other evidence of appellant’s state of mind––including his own statements during the crime testified to by numerous witnesses that he was going to kill the girls––overwhelmingly demonstrated that his actions were deliberate and intentional. Therefore, any failure to object to the testimony of the eyewitnesses was harmless. Accordingly, appellant’s ineffective assistance of counsel claim is without merit.
IV.
Disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.