Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PA050761, Harvey Giss, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Odell Hale appeals from his conviction of corporal injury to a spouse, assault by means likely to produce great bodily harm, criminal threats, and assault with a deadly weapon. Appellant argues the court (1) abused its discretion in refusing to dismiss two prior strike convictions pursuant to Penal Code section 1385 ; (2) was unaware of its authority to dismiss a prior strike conviction as to one count and not another; (3) violated section 654 by sentencing appellant to concurrent life terms on counts 5 and 8; and (4) improperly interrogated witnesses, exhibiting bias against appellant and violating his right to due process. Although the court’s questioning of a witness did constitute error on one occasion, the error was not prejudicial. We find no error in the other rulings, and affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
For nearly 18 years, appellant and Velvet Rushing were in a relationship but not legally married. They lived together with their two teenage boys, Odell and Donte. In March 2004, appellant and Rushing had a domestic dispute. The couple argued throughout the night, and appellant struck Rushing in the back of the neck multiple times. Rushing went to her cousin’s house, where police arrived to inquire about the incident.
All subsequent references to Odell are to Odell III, appellant’s son.
Another domestic dispute occurred in February 2005. Although Rushing and the sons tried to minimize the severity of that incident, the following facts were elicited. Appellant and Rushing had been out to dinner, celebrating their anniversary. When they arrived home, appellant appeared intoxicated and became angry with Odell for wearing appellant’s T-shirt. Although Odell had used no physical force against appellant at that time, appellant punched him in the face. Rushing started hitting appellant to protect Odell. Rushing was thrown against a dresser. Appellant grabbed a sword from under his bed. He threatened Rushing and both children. He yelled about how tired he was of everyone taking advantage of him. He said, “I’m going to kill you. I’m going to kill you and the kids.” Rushing tried to call 911 but did not get through to police. She told the sons to call, which they did. Afterwards, but before the police arrived, appellant appeared with a kitchen knife and walked towards Rushing and Odell. Appellant got within five or six feet of Odell. Appellant had relinquished the sword, which Odell then held. Odell said, “‘Don’t do anything.’” Only then did appellant stop advancing and return to the kitchen with the knife. Rushing then waited outside for the police with the children. She later took Odell to a hospital emergency room to be treated for injuries from the altercation with appellant.
Appellant was charged with one count of corporal injury to a spouse, in violation of section 273.5, subdivision (a), based on the March 2004 incident. For the February 2005 incident, he was charged with two counts of assault by means likely to produce great bodily injury against Rushing and Odell, in violation of section 245, subdivision (a)(1). He also was charged with three counts of criminal threats against Rushing, Odell, and Donte, in violation of section 422. He further was charged with two counts of assault with a deadly weapon or by means likely to produce great bodily injury (a violation of section 245, subdivision (a)(1)) for his use of a sword and knife against Odell. It was alleged that appellant personally used a deadly and dangerous weapon (knife and sword) within the meaning of section 12022, subdivision (b)(1), when making the criminal threats. It was further alleged that he had served six prior prison terms (§ 667.5, subd. (b)), suffered five prior strike convictions (§ 667, subds. (b)-(i)), and had four serious felony convictions within the meaning of section 667, subdivision (a)(1).
The jury found appellant not guilty of assault by means likely to produce great bodily injury as to Rushing, but guilty of all other counts. The jury found the weapon use allegations true. The court found true three prior strike convictions and all prior convictions alleged under 667, subdivision (a)(1). Appellant moved to dismiss his prior strike convictions pursuant to section 1385. The court denied the motion and sentenced appellant to state prison for 66 years to life. Appellant filed this timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant argues the court abused its discretion in denying his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss his prior strike conviction. In Romero, our Supreme Court held that courts have authority to dismiss a prior conviction allegation, pleaded for purposes of sentencing under the “Three Strikes” law. (Id. at p. 504.)
A court’s decision whether to strike a prior conviction is subject to the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) The exercise of discretion will only be reversed when the trial court rules in an arbitrary or irrational manner. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) We will not reverse merely because the issue could have been decided differently. The party seeking reversal carries the burden of demonstrating abuse of discretion. If the party fails to meet its burden, we assume the court acted to achieve a fair sentencing outcome. (Ibid.) In this case, appellant failed to carry his burden because he has not shown the court’s ruling was arbitrary, capricious, or irrational.
In ruling on a motion to dismiss a prior conviction, the court should consider whether doing so would be in the “furtherance of justice, ” pursuant to section 1385, subdivision (a). (People v. Williams (1998) 17 Cal.4th 148, 159.) The Williams court emphasized that considerations of justice involve not only consideration of the defendant’s constitutional rights, but also the interests of society. (Ibid.) The “‘furtherance of justice’” standard requires the court to evaluate whether the defendant is outside the “scheme’s spirit.” (Id. at p. 161.) Whether a defendant falls outside the “scheme’s spirit” is based on factors such as the nature and circumstances of the current felony or prior conviction. This inquiry also may be based on the defendant’s “background, character, and prospects.” (Ibid.)
In this case, the court considered whether appellant was outside the spirit of the law, and concluded he was not. As the court stated, appellant’s juvenile history revealed he first was committed to the California Youth Authority at age 14. As a minor, appellant was returned to the California Youth Authority three more times for battery, violation of parole, and assault on a peace officer/fireman. As an adult, appellant suffered three strike convictions, including one conviction for armed robbery. Appellant also was convicted of grand theft auto, burglary, and driving under the influence. Reviewing appellant’s lengthy criminal history as reflected in the probation report, the court stated, “He’s just continuously in serious trouble.” The court considered appellant a “poster boy for Three Strikes, ” because his recidivism made him “a menace and a threat to the public.” The severity of the current offenses also led the court to conclude appellant fell within the spirit of the law. The court stated, “[W]e could have had a murder here, or more, on the night in issue.”
Even with appellant’s substantial recidivism and the severity of the current offenses, the court expressly considered the already lengthy sentence appellant was facing. The court stated its concern that appellant might not “get out [until] the age of 85, ” and considered dismissing prior strike convictions to give appellant “hope” and to possibly make him a “better prisoner.” However, the court concluded such dismissal would not serve the interests of society. It stated, “[T]his individual has shown no repentance at any time [and] just continually commits crimes.”
To deem a repeated recidivist outside the spirit of the law, the circumstances must be extraordinary; appellant’s situation is not. (See People v. Strong (2001) 87 Cal.App.4th 328, 332.) Appellant has not shown the court ruled in an arbitrary, capricious, or irrational manner. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
II
Appellant also argues the court was unaware of its discretion under People v. Garcia (1999) 20 Cal.4th 490, to dismiss appellant’s prior strikes as to count 1, corporal injury of a spouse, while still utilizing the strikes for purposes of sentencing on the remaining counts. In Garcia, our Supreme Court found a court may exercise its discretion to dismiss prior strike convictions as to one count and not another. (Id. at pp. 492-493.)
To find reversible error, “any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385 to strike the prior conviction if it believed it had such discretion” is required. (People v. Fuhrman (1997) 16 Cal.4th 930, 945.) The court commits error when it is unaware of its discretion to dismiss prior strike convictions. (See People v. Carmony, supra, 33 Cal.4th at p. 378.) There is no affirmative indication in this case that reveals error occurred.
To the contrary, the record includes an affirmative indication revealing that the court was aware of its authority to relatively dismiss prior strike convictions. Although the court did not expressly discuss its authority under Garcia, it did state, “So the motion to strike any strikes under Romero would be denied.” The court’s use of “any” suggests that it was aware of its authority to dismiss strike convictions as to one count and not another.
Appellant points to another statement as demonstrating that the court was unaware of its discretion under Garcia. The court stated, “My intent is also at this time, by way of a tentative, to sentence [appellant] consecutive to another life sentence on count 1, which occurred on a different date. That is actually mandatory.” Appellant’s reliance on the court’s statement that a consecutive term was “mandatory” is misplaced. The record suggests the court was referring to whether the sentence on count 1 should run consecutively, not that it lacked discretion to dismiss a prior strike conviction. Earlier the court commented, “Counts 1 and 5 occurred on different occasions a year apart. And it’s mandatory that I sentence him consecutive if I don’t strike the priors.” In light of the court’s earlier statement, the latter statement provides no affirmative indication the court was unaware of its discretion.
In the alternative, appellant argues defense counsel provided inadequate assistance in not requesting the court exercise its discretion to dismiss prior strike convictions as to count 1. Because appellant establishes no prejudice, his claim fails.
To sustain a claim of inadequate assistance, appellant must show that counsel’s performance was deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The first requires a showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Ibid.) To establish prejudice, appellant must show counsel’s errors were “so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” (Ibid.)
In ruling on a claim of inadequate assistance, the Court need not evaluate counsel’s performance before it looks at prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Because the court was aware of its discretion under Garcia, failure by counsel to request the court exercise its discretion differently would have been futile. This is especially true in light of the court’s statement that it would not dismiss “any” strikes.
III
Appellant further argues the court violated section 654 by sentencing him to concurrent life terms on counts 5 and 8, criminal threats and assault with a knife against Odell. Appellant contends counts 5 and 8 constituted a single, indivisible course of conduct and thus the sentence for count 5 should have been stayed. We disagree.
Section 654, subdivision (a), states: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Section 654 prohibits multiple punishments for a single act that constitutes an indivisible course of conduct. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.)
Whether acts are part of an indivisible course of conduct is a factual determination made by the court. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) The determination is based on factual findings of defendant’s intent and objectives and will not be reversed unless unsupported by the evidence. (Ibid.) We give broad latitude to the court’s findings by reviewing the determination in the light most favorable to the respondent. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Applying that standard, the facts in this case suggest a divisible course of conduct existed because appellant had separate, independent objectives. (See People v. Cleveland, supra, 87 Cal.App.4th at pp. 267-268.) On the night of the February 2005 incident, appellant shouted threats to Odell. He later assaulted Odell with a kitchen knife. But, when he approached Odell with the knife, he uttered no threats. Although the court did not comment on this issue expressly, it was reasonable for the court to conclude appellant’s former objective was to merely frighten Odell, while his latter, independent objective was to inflict great bodily harm. Temporal proximity of the criminal threats and assault does not mean the two incidents were part of one indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) There is substantial evidence to demonstrate a divisible course of conduct, such that a stay of the punishment for count 5 was not required.
IV
Finally, appellant argues the court committed misconduct on four occasions by examining witnesses in a manner exhibiting prejudice towards him. Although the court’s questioning appears to have been improper on one occasion, the error is not shown to be prejudicial.
At the outset, we conclude the claim is not forfeited for a lack of timely objection. Although failure to make a timely objection generally forfeits the claim (People v. Cook (2006) 39 Cal.4th 566, 598), objection is unnecessary when it would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 821.) Respondent objected to the court’s questioning of witnesses, arguing “it interferes with both the People’s and the Defense case.” The court nevertheless continued to ask questions throughout the trial. At one point, the court interrupted Odell’s cross-examination. When counsel for appellant attempted to resume his questioning, the court responded, “I’m asking the questions at this stage. Please stay out of it.” The court’s statement “stay out of it” as well as the court’s continual questioning in the face of respondent’s objections, demonstrated that an objection at that juncture would have been futile. The claim is not forfeited. (People v. Hill, supra, 17 Cal.4th at p. 821.)
Appellant argues the court’s questioning of witnesses on four occasions constituted prejudicial error. To ensure a fair outcome, “a trial court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony.” (People v. Cook, supra, 39 Cal.4th at p. 598.) Because judges have great latitude to ensure facts are fully developed, ambiguities resolved, and justice served, instances of impropriety must be egregious. (People v. Raviart (2001) 93 Cal.App.4th 258, 270.) It is egregious for the court to assume to the role of the prosecution or defense. (See People v. Cook, supra, 39 Cal.4th at p. 598.) Even where the court exhibits bias, appellant must have suffered prejudice so great as to deny him a fair trial. (People v. Harris (2005) 37 Cal.4th 310, 346.)
The first instance of alleged impropriety occurred during the recross-examination of Rushing. The court asked why Rushing was afraid of appellant during the February 2004 incident and not during the March 2005 incident. The court acted within its discretion to clarify Rushing’s inconsistent testimony. (People v. Cook, supra, 39 Cal.4th at p. 598.)
The next instance took place during the direct examination of Odell, when the court asked whether anyone had discussed the elements of the crimes with him. Whether a witness knows the elements of a crime is a material fact relevant to a witness’s motive to fabricate and credibility; the court acted within its discretion to elicit material facts bearing on that issue. (People v. Cook, supra, 39 Cal.4th at p. 598.)
The third instance occurred during cross examination of Odell. The court asked why he felt the need to call 911 and whether he was afraid of appellant. To ensure a just outcome, the court again questioned Odell to clarify his testimony and to elicit a material fact pertaining to the elements required to prove a criminal threat. (People v. Cook, supra, 39 Cal.4th at p. 598; § 422.)
The final instance of alleged impropriety occurred during the recross-examination of Odell. Counsel for appellant asked Odell whether he felt pain after being struck by appellant in an effort to minimize the severity of the blow. Odell testified he did not feel the blow. In the presence of the jury, the court then interrupted and questioned as follows:
“COURT: You’re a football player, right?
“WITNESS: Yes.
“COURT: And you take hits on the field, correct?
“WITNESS: Always, yes.
“COURT: You got a lot of adrenalin when you get hit?
“WITNESS: Yes.
“COURT: And sometimes you get hit, right?
“WITNESS: Yes.
“COURT: And sometimes you don’t feel it because the game is in progress. Maybe two hours later in the locker room you start to feel sore. Were you excited and was the adrenalin flowing that night?
“Witness: Yes.”
On this occasion, we agree the court went beyond its role as “impartial presiding officer” and improperly assumed the role of the prosecutor. (People v. Cook, supra, 39 Cal.4th at p. 598.) The football analogy was initiated by the court and not first mentioned by counsel or the witness. It presented an alternate theory, favorable to respondent, as to why Odell initially might not have felt the blow from appellant. The last remark by the court included mostly statements presenting the alternative theory, as opposed to a question asked to elicit information from the witness. The court was not clarifying the evidence, nor was it eliciting a material fact in the interest of justice.
Although this was an abuse of discretion, appellant cannot establish prejudice so great as to deny him a fair trial. (See People v. Harris, supra, 37 Cal.4th at p. 346.) The court instructed the jury not to assume as true any insinuation suggested by a question, nor to assume the court intended anything by its questions or rulings. (CALJIC No. 17.30) The instruction protected against prejudice by reminding the jury of the judge’s role as an “impartial presiding officer whose occasional questions to witnesses [are] designed to clarify the evidence without favoring either side.” (People v. Cook, supra, 39 Cal.4th at p. 598.) We must assume the jury followed this instruction. (People v. Harris, supra, 37 Cal.4th at p. 350.)
More importantly, it is unreasonable to assume the jury would have reached a different verdict had the judge not intervened in this instance. The testimony of both Rushing and Odell revealed them to be adverse to the respondent, trying to minimize their testimony in favor of appellant. Rushing admitted she was subpoenaed, did not want to testify, and loved appellant. Odell acknowledged he too loved appellant and felt “bad” about appellant’s legal predicament. In closing, respondent further suggested to the jury that Rushing and Odell were “minimizing” their testimony out of love for appellant. Through witness testimony, prior inconsistent statements to police officers, photographs, physical evidence (knife and sword), and recordings of the 911 calls, the record provides more than ample evidence supporting the convictions and impeaching the credibility of Rushing and Odell. Because appellant did not establish prejudice so great as to indicate he was denied due process of law, his claim of judicial misconduct fails. (People v. Harris, supra, 37 Cal.4th at p. 346.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, SUZUKAWA, J.