Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS062522A.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Dwight Henness was convicted after jury trial of assault with a stun gun or taser (former Pen. Code, § 244.5, subd. (b)). The trial court placed defendant on probation with various terms and conditions, including that he “[t]ake all psychotropic medication as prescribed by a physician” and “[e]xecute a waiver of confidentiality form with [his] medical provider to allow probation department to monitor compliance with [his] medical treatment and medications.”
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that (1) there is insufficient evidence to support his conviction; (2) the trial court abused its discretion and denied him due process when it admitted evidence of prior bad acts; (3) defense counsel rendered ineffective assistance by failing to timely object to hearsay testimony; (4) the cumulative effect of these errors requires reversal of the judgment; and (5) the court erred in imposing probation conditions relating to his medications and a waiver of confidentiality which are unconstitutionally vague and overbroad, and defendant’s counsel rendered ineffective assistance by failing to object to the imposition of the conditions on these grounds. As we find no prejudicial error or ineffective assistance of counsel, we will affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
BACKGROUND
Defendant was charged by information with one count of assault with a stun gun or taser (former § 244.5). Prior to trial, the court ruled that if defendant proffered self-defense as a defense to the charged offense, it “would likely allow” the prosecutor “to go into other conduct of the same nature.”
The Prosecution’s Case
The Charged Offense
Seaside Police Officer Steven Wright was in his patrol car, stopped at a red light on Fremont Boulevard, around 4:30 p.m. on August 6, 2006. When he looked to his left, he saw two cars parked at an odd angle in the street about 150 feet away. No hedges blocked his view. He could see that the drivers of both cars were in the street having an argument. One man, later determined to be a Mr. Reid, raised his hands above his shoulders and the other man, defendant, pointed at him. Reid started walking backwards and defendant walked forward towards Reid with his arm extended. Officer Wright noticed that defendant had a black object in his hand. When Reid had his back against his car, defendant touched Reid on his chest with the black object and Reid jerked backwards.
Officer Wright activated his emergency lights, drove across the intersection, parked his patrol car near the two men, and got out. He asked the men to back up. Defendant backed up a few feet and both men looked at the officer. The officer saw that defendant had a stun gun in his hand, so he told defendant to put the stun gun on the seat of his car and to step over to the curb. Defendant did so. Officer Wright identified People’s exhibit No. 6, the object that had been in defendant’s hand, as “a Raptor stun gun.”
Officer Wright testified that he is familiar with stun guns “[t]o some degree.” A stun gun “uses two nine volt batteries, in this case, and when you activate it, there’s a charge of amperage which comes out of the electrodes.” Defendant’s stun gun “was working and powerful” when the officer took possession of it. When he activated it at the scene, “it spark[ed] from all four of the electrodes.” It sparked much stronger then than it did when the officer demonstrated it at the November 2009 trial because its batteries were worn out after sitting for three years. The officer did not actually see sparks when defendant had the stun gun against Reid’s chest.
Officer Wright could see that there was nothing blocking defendant’s car from moving forward but that defendant’s car was blocking Reid’s car from moving forward. Defendant’s wife was in defendant’s car, and there were many bystanders at the scene, but the officer did not know whether Darcy Nainoa was one of the bystanders. He did not interview any of the bystanders but three other officers did. The officers reported to Officer Wright that they could not find anybody who saw anything.
Officer Wright observed that Reid had marks on his chest that matched the dimensions of the prongs on the stun gun. Reid said that when he approached the intersection, defendant’s car was ahead of him and it appeared to Reid that defendant was going to drive straight; he did not have any turn signals on. So, Reid pulled to the right of defendant’s car to make a right turn. Defendant then accelerated, turned to the right, and blocked his path. Both cars stopped. Reid said that he sat in his car for approximately 20 or 30 seconds. He waived at defendant’s car, asking are you going to go or not. When nothing happened, he exited his car and approached defendant’s car. Defendant was still in his car. Reid admitted that he said “things” to defendant, and that he probably “cuss[ed] at him.” He then saw defendant reach for the glove box, pull out the stun gun, get out of his car, and point the stun gun at him. Defendant said, “you think you’re tough. Do you want some of this?” Reid then raised his hands and backed up.
Officer Wright asked defendant what happened. Defendant said that he had “stunned” Reid. Officer Wright asked defendant’s wife whether defendant or Reid hit each other, and she replied no. The officer asked defendant if he was injured, and defendant said no. Wright arrested defendant for activating the stun gun on Reid because “[i]t appeared that he had the choice not to do it. He had the choice to leave, but he chose not to.”
Prior Acts
Marilyn Gomez
Marilyn Gomez drove her boyfriend and his brother to Panda Express in Sand City on the afternoon of July 26, 2006. She stopped at a stop sign, and when it was her turn to go she started to make a left turn. Another car passed in front of her so she honked her horn. The driver stopped and she continued on. When she stopped at the next stoplight, the car that had passed in front of her stopped there, too, on her right. Defendant and his wife were in the car. Defendant’s window was down and she heard him say, “Do you want to fight, bitch?” She looked at him in shock. Gomez’s boyfriend said, “shut up you old man.” The light turned green and Gomez drove on to the parking lot of Panda Express. She parked and everyone was about to get out of the car when defendant pulled behind her. She was blocked in because there was a car in front of her. Defendant got out of the car, said something, and then returned to his car. Defendant’s wife handed him something, and he walked towards the passenger side of Gomez’s car. Defendant had something in his hand that looked like People’s exhibit No. 6, and Gomez heard a “chee-chee-chee” noise coming from it. Defendant said, “Do you want some of this?” Because the car in front of Gomez’s car had pulled out, Gomez’s boyfriend yelled at her to drive away. She drove around the shopping center, but could see in her rearview window that defendant followed her for about five minutes. Gomez was able to give the police a description of defendant’s car and a partial license plate number. To her knowledge, no charges were filed against defendant based on her statement to the police.
Leonardo Garcia
Leonardo Garcia drove with his girlfriend to a gas station in Seaside on August 20, 2005. He drove up to an island to fill up his car and got out. He heard defendant yell “some bad words” at him. Garcia responded, “What’s wrong with you?” He began filling his car. Defendant tried to attack Garcia, so Garcia got back inside his car. When his car was filled with gas, Garcia got out of the car again. Defendant yelled at him and tried to attack him again. Garcia held onto the gas nozzle, and defendant went back to his car. He retrieved something that looks like People’s exhibit No. 6, and which made a “tri-tri-tri-tri-tri” noise, “[l]ike electricity, ” and he yelled at Garcia. Defendant did not actually touch Garcia with the object, but he almost did. Garcia’s girlfriend said, “Come on. Let’s go, ” so Garcia got back in the car. The police arrived and Garcia told them what had happened.
Officer Wright took the report from Garcia at the gas station, and he talked to defendant. Defendant had a stun gun in his hand, so the officer told him to put it in his car. Defendant did so. Defendant said that he and Garcia tried to go to the same pump. When Garcia pulled around defendant, Garcia or his passenger cussed at defendant, so defendant walked over to see what their problem was. Defendant said that it appeared to him that Garcia “had an attitude, ” so he retrieved the stun gun from the glove box of his car, and went back to Garcia’s car. Defendant said, “If you want to fight, I’m not going to fight bare-handed. I’ll use this, ” indicating the stun gun. While discussing what had occurred, defendant became angry and his face turned red. He said that if the officer had been in Vietnam with him, he would have shot the officer. He also said that he is happy when officers like the female officer who was there “get raped and killed.” The following day, Officer Wright viewed a surveillance video of the incident. The video showed that defendant approached Garcia’s car three times. When defendant approached with the stun gun, Garcia was inside his car. Defendant was driving a different vehicle on this day than he was driving the day of the incident with Reid.
The Defense Case
Mary Henness, defendant’s wife, was in their car on August 6, 2006, when defendant stopped at a stop sign at a frontage road. When defendant proceeded to turn right, Mary saw in the side-view mirror a vehicle approach them on the passenger side as if it was trying to pass them. Mary screamed at defendant to stop, and he did. He looked to see if they had been hit and then he checked to make sure she was okay. A man, Reid, got out of his car and approached their car on the driver’s side. He pounded on the window with clenched fists and screamed, “Hey, old man, what the fuck do you think you’re doing. Get out of the car.” Defendant got out of the car but became wedged between the car door and the car by Reid pushing on the door. Reid then jumped around and threw “what appeared to be left punches.” Darcy Nainoa arrived on the scene, got between defendant and Reid, and told Reid not to hit defendant. Officer Wright arrived later. In her opinion, Officer Wright could not have seen the altercation from where he said he was because of the hedges in the median. She does not remember telling Officer Wright that neither defendant nor Reid hit each other. Later that evening, defendant was not feeling well so she took him to the emergency room.
Mary testified that defendant purchased People’s exhibit No. 6, and that he kept it in between the driver’s seat and the car door so that it was always readily available for protection. He had needed it for protection twice before this incident. Once, defendant got it out and said that he had it at a gas station when a man cussed at him and approached him. The other time was when a woman cut them off at an intersection and then threw her hand up at defendant “as to flip him off.” Defendant and Mary followed the woman to the Panda Express parking lot to get her license plate, and then the woman took off. Defendant never got out of the car.
Dr. John Nabih Hage, an emergency physician at the community hospital, examined defendant on August 7, 2006. Defendant had been seen in the emergency room the day before. When Dr. Hage saw him, defendant complained that his jaw hurt, that he had a headache, and that he had been vomiting. Defendant told the doctor that the day before, he was in his car when an unknown individual knocked on his window, pulled him from the car, and hit him in the face and chest several times. Upon examination, defendant had some reproducible pain over his mandible, which indicated that there may have been some trauma there. There was no visible swelling, bruising, lacerations, or cuts. Based “mostly” on defendant’s statements, the doctor diagnosed a suspected concussion, a suspected jaw contusion, and “subjective urinary retention resolved.” An x-ray of defendant’s mandible revealed no breaks or fractures.
Verdict, Motion for New Trial, and Sentencing
On November 24, 2009, the jury found defendant guilty of assault with a stun gun or taser (former § 244.5, subd. (b)). On January 11, 2010, defendant filed a motion for new trial contending that his right to confrontation was violated because Reid was not called to testify. On February 26, 2010, the court denied the motion for new trial, suspended imposition of sentence, and placed defendant on probation for three years with various terms and conditions. Two of the conditions were that he “[t]ake all psychotropic medication as prescribed by a physician, ” and that he “[e]xecute a waiver of confidentiality form with [his] medical provider to allow probation department to monitor compliance with [his] medical treatment and medications.”
DISCUSSION
Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support his conviction. “[T]he record is devoid of any direct or circumstantial evidence that the item used by [defendant] was capable of temporarily immobilizing a person and therefore met the statutory definition of an illegal stun gun.” “In the absence of factual evidence showing temporary immobilization, the failure to introduce opinion testimony on the effects of a stun gun is fatal to the state’s conviction in this case.”
The Attorney General contends that there was sufficient evidence to prove that defendant used a stun gun: Officer Wright identified the object that defendant used during the incident as a stun gun, he testified that the stun gun was working on the day of the incident, he activated it before the jury, he testified that the marks on Reid’s chest matched the dimensions of the prongs on the stun gun, and he testified that he saw Reid jerk backwards when defendant touched defendant with the stun gun. The Attorney General argues that defendant admitted to the officer that he had “stunned” Reid and that if the stun gun “were not capable of temporarily immobilizing an aggressor, then it would have been useless to [defendant] as a self-defense tool.” Therefore, there was “sufficient evidence for the jury to reasonably conclude that the stun gun inflicted an electrical charge that was capable of temporarily immobilizing a person.”
“In resolving claims involving the sufficiency of evidence, a reviewing court must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] The supporting evidence must be substantial, that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34.) “ ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
At the time of defendant’s offense, section 244.5 stated in pertinent part: “(a) As used in this section, ‘stun gun’ means any item, except a taser, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge. [¶] (b) Every person who commits an assault upon the person of another with a stun gun or taser shall be punished by imprisonment in a county jail for a term not exceeding one year, or by imprisonment in the state prison for 16 months, two, or three years.” (Stats. 1988, ch. 1113, § 1.)
“[S]ection 244.5 does not require that a victim actually be temporarily immobilized.” (In re Branden O. (2009) 174 Cal.App.4th 637, 642.) “The question is not whether immobilization was actually caused (although that is probative of the stun gun’s capabilities)....” (Ibid.) The statute requires only that the device be “used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge.” (Former § 244.5, italics added.)
Here, the record shows that defendant assaulted Reid with a “stun gun.” Officer Wright and defendant’s wife both identified the device that defendant had in his hand during the incident involving Reid as a stun gun. Mary testified that defendant had the stun gun to use for his protection, that is, for his self defense, and that Reid was throwing punches at defendant during the incident. Dr. Hage testified that defendant told him that he had been hit during the incident. Officer Wright testified that the stun gun that defendant had emits an electrical charge, and he demonstrated that for the jury. He also testified that he saw defendant place the stun gun against Reid’s chest, that he saw Reid then jerk backwards, and that he saw that Reid had marks on his chest consistent with the probes of defendant’s stun gun. Defendant admitted to Officer Wright that he had “stunned” Reid, and to stun somebody means to make them “senseless, groggy, dizzy by or as if by a blow, ” or to “daze.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 1169.) This is substantial evidence that defendant used or intended to use his stun gun “as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge.” (Former § 244.5.)
Defendant argues that the evidence is insufficient to support the conviction because the record “lacks any lay or expert opinion testimony about the level of electrical charge produced by [his] stun gun, the effect of this or any stun gun on a human body or its capacity to temporarily immobilize a target.” However, defendant erroneously focuses on the evidence that did not exist rather than on the evidence that did exist. (See People v. Story (2009) 45 Cal.4th 1282, 1299.) The evidence that does exist supports a finding that defendant’s stun gun emits an electrical charge, that defendant had the stun gun to use as a defensive weapon, that he used the stun gun as an offensive or defensive weapon twice before, that he stunned Reid with the stun gun during the incident at issue, and that he intended to use the stun gun during the incident as an offensive or defensive weapon capable of immobilizing Reid with an electrical charge. On this record, we determine that the evidence presented supports the jury’s finding that defendant assaulted Reid with a stun gun within the meaning of former section 244.5.
Prior Acts Evidence
Prior to trial, the prosecutor moved in limine to introduce evidence of the incidents involving Gomez and Garcia pursuant to Evidence Code section 1101, subdivision (b), to refute any claim of self-defense, if that defense was offered at trial. Attached to the motion were the police reports regarding the two incidents. Defense counsel objected that such evidence would amount to bad character evidence pursuant to Evidence Code section 1101, subdivision (a), and would be overly prejudicial pursuant to Evidence Code section 352. The court ruled, and later stated on the record, that if defendant proffered self-defense as a defense to the charged offense, it “would likely allow” the prosecutor “to go into other conduct of the same nature.”
After Officer Wright testified and was cross-examined as to the incident involving Reid, and after both parties stated that they had no further questions for him, the prosecutor stated he had no other witnesses to present “at this time, ” and asked for the evening recess. The next court day, defendant called Dr. Hage to testify on his behalf out of order. When the prosecutor then called Gomez to testify for the prosecution, defendant objected. At a sidebar conference, defense counsel objected that Gomez’s testimony was only relevant as bad character evidence and was overly prejudicial. The court ruled that the defense had already asserted a claim of self-defense through its earlier cross-examination of Officer Wright and through its presentation of Dr. Hage. The court ruled that the testimony of Gomez could be presented pursuant to Evidence Code section 1101, subdivision (b).
Following Gomez’s testimony, the prosecutor called Garcia to testify for the prosecution. Defense counsel asked to approach the bench, and a sidebar conference was held. At the side bar conference, defense counsel objected to Garcia’s testimony on the same grounds that he raised regarding Gomez’s testimony. The court overruled the objection for the same reasons it gave for overruling the objection to Gomez’s testimony.
Following Garcia’s testimony, the prosecutor recalled Officer Wright. The prosecutor asked the officer if he had responded to the gas station regarding the incident Garcia had just testified to. The officer said yes. The prosecutor asked the officer if he contacted defendant, and if he had looked at the video of the incident. The officer responded yes to both questions. The prosecutor then asked, “So it was all captured on a --” At this point, defense counsel objected and asked to approach the bench. A side bar conference was then held. At the side bar conference, defense counsel objected to Wright’s testimony on the same grounds that he raised regarding Gomez and Garcia’s testimony. The court overruled the objection for the same reasons it gave for overruling the objections to Gomez’s and Garcia’s testimony. The officer then testified concerning the incident involving Garcia.
On appeal, defendant contends that the court abused its discretion and denied him due process when it admitted the testimony regarding the incidents involving Gomez and Garcia “where all of the factors establishing prejudice under [Evidence Code] section 352 were present.” He argues that the incidents “bore significant factual differences from the charged offense, [and] were undertaken with a different motive, ” and that “[t]here is no indication in the record that the court undertook the formal and careful analysis required of [the evidence] under [Evidence Code] section 403... before tentatively ruling that the court would admit such evidence to disprove a claim of self-defense.”
The Attorney General contends that the court did not abuse its discretion in admitting the evidence because “the evidence was relevant to [defendant’s] intent, specifically to refute his claim that he was acting in self-defense.” “The prior act evidence was relevant to demonstrate that [defendant] was in fact the initial aggressor, that he intentionally blocked [Reid’s] car, and that he was acting with general criminal intent, not in self-defense, when he assaulted the retreating [Reid] with the stun gun.”
“Subject to the trial court’s discretion under Evidence Code section 352, evidence of a defendant’s uncharged acts may be admitted into evidence under Evidence Code section 1101(b) when relevant to prove some fact, such as motive, intent, preparation, or plan, other than his disposition to commit such an act. Such evidence of other uncharged [acts] may be introduced once its proponent establishes, by a preponderance of evidence, both the fact of the prior [act] and the defendant’s connection to it. [Citations.] Under the Evidence Code, the truth of the prior uncharged act and defendant’s connection to it are preliminary factual issues which must be decided before the prior misconduct can be deemed admissible; if the prior and defendant’s connection to it are not established by a preponderance of the evidence, the prior is irrelevant to prove the Evidence Code section 1101(b) fact for which it is being offered. [Citations.]” (People v. Garelick (2008) 161 Cal.App.4th 1107, 1115 (Garelick); Evid. Code, § 403, subd. (a).)
“The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact when: [¶]... [¶] (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.” (Evid. Code, § 403, subd. (a).)
“ ‘In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ [Citations.] However, the least degree of similarity between the uncharged and charged acts is sufficient to prove intent because the recurrence of a similar result tends to negative accident, inadvertence, good faith, or other innocent mental state. [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1115; accord, People v. Cole (2004) 33 Cal.4th 1158, 1194 (Cole).)
Here, prior to trial, the prosecutor presented evidence in the form of police reports to establish both the truth of the prior acts and defendant’s connection to them. The evidence showed that defendant was the aggressor during two prior incidents when he approached people in a car while holding his stun gun. During the incident at issue in this case, defendant approached a man who had just gotten out of his car while defendant was holding his stun gun. In all three incidents, defendant and the driver of the other car had just been involved in some sort of confrontation relating to the way their respective vehicles had been operated. Accordingly, the prior acts were sufficiently similar to be relevant to the issue of defendant’s intent at the time he approached Reid, the driver of the car in the incident at issue, while defendant held a stun gun. Therefore, we cannot say that the trial court abused its discretion in ruling that evidence of the prior acts involving Gomez and Garcia was admissible on the issue of defendant’s intent. (Evid. Code, §§ 403, subd. (a), 1101, subd. (b).)
Defendant contends that, nevertheless, the trial court should have excluded the evidence under Evidence Code section 352.
In order for evidence of uncharged acts to be admissible pursuant to Evidence Code section 1101, subdivision (b), the court must perform a balancing of factors specified in Evidence Code section 352. “The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.) On appeal, the trial court’s resolution of both of these issues is reviewed for abuse of discretion. (Id. at pp. 369, 371; Cole, supra, 33 Cal.4th at p. 1195.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (Kipp, supra, at p. 371.)
As we stated above, the evidence of the uncharged acts was highly relevant on the issue of defendant’s intent. The probative value of the evidence was further enhanced by the proximity of the two incidents in time and in location to the charged offense. All three incidents occurred within one year and a few miles of each other. (See Kipp, supra, 18 Cal.4th at p. 371.) The evidence was no more inflammatory than the evidence concerning the charged offense. (Id. at p. 372.) The court informed the jury that “the only thing [defendant is] charged with is the incident involving [Reid], ” and the court instructed the jury that the only the purpose for which it might consider the evidence of the prior acts was to decide whether or not defendant acted in self-defense. (See CALCRIM No. 375; Kipp, supra, at p. 372.) Considering, all these relevant factors, we conclude that the trial court did not exceed the bounds of reason when it concluded that the probative value of evidence of the prior acts on the issue of defendant’s intent was not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Kipp, supra, at p. 372.)
Hearsay Evidence
During Officer Wright’s cross-examination, in response to defense counsel’s questions regarding what the officer knew about Reid’s conduct prior to when the officer first saw them on August 6, 2006, the officer testified to statements Reid had made to him that day. Neither defense counsel nor the prosecutor objected to this hearsay testimony by the officer. Then, during the officer’s redirect examination, the prosecutor asked the officer about other statements that Reid had made. Defense counsel did not object to the officer’s responses as hearsay until the officer testified that Reid said he raised his hands and backed up after defendant got out of his car and pointed the stun gun at him. In response, the prosecutor stated, “Well, Counsel questioned him on certain things.” “And now, I’m just cross-examining on what Counsel opened up.” The court ruled, “All right. The hearsay objection is overruled, at this point.” Officer Wright continued to testify, both during his redirect examination and his recross-examination, as to statements Reid made to him.
Citing People v. Gambos (1970) 5 Cal.App.3d 187 (Gambos), defendant now contends that trial counsel rendered ineffective assistance by failing to object to Officer Wright’s hearsay testimony. We understand defendant’s argument to be that the prosecutor should have objected when Officer Wright first offered inadmissible hearsay testimony in response to defense counsel’s questions and that, therefore, the prosecution had no right to the admission of the officer’s additional hearsay testimony under Evidence Code section 356. Accordingly, counsel rendered ineffective assistance by “fail[ing] to offer an argument or objection to the prosecutor’s incorrect assertion that counsel had ‘opened the door’ under [Evidence Code] section 356.”
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Strickland v. Washington, supra, at p. 697.)
Evidence Code section 356 states: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” “The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.)
“ ‘In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In the event a statement admitted in evidence constitutes part of a conversation... the opponent is entitled to have placed in evidence all that was said... by or to the declarant in the course of such conversation... provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence....” [Citation.]’ [Citation.] ” (People v. Zapien (1993) 4 Cal.4th 929, 959 (Zapien), italics omitted.) It is no objection to the other statements that they would otherwise be excludable hearsay. (People v. Williams (1975) 13 Cal.3d 559, 565.) However, statements that are irrelevant to those being admitted, or statements that do not serve to clarify or explain those statements which were admitted, may be excluded at the court’s discretion. (Gambos, supra, 5 Cal.App.3d at pp. 192-193; People v. Von Villas (1992) 10 Cal.App.4th 201, 272.) We review a trial court’s ruling on a hearsay objection for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 714, 725.)
In Gambos, trial counsel, out of the presence of the jury, announced an intention to establish on cross-examination of a police officer that the defendant’s roommate Joyce had stated that the heroin found in the kitchen drawer belong to her. The district attorney responded that he would not object if counsel asked the question but that, by asking the question, counsel would “open[] the door” to allowing him to elicit the entire conversation. (Gambos, supra, 5 Cal.App.3d at p. 191.) The remainder of the conversation the prosecutor elicited was Joyce’s later declaration that she knew nothing about the heroin found under a mattress. (Ibid.) The appellate court found that just because the prosecutor failed to object to the admission of the first part of Joyce’s statement, the prosecutor did not gain the right to have all her additional otherwise inadmissible statements admitted. (Id. at p. 192.) The appellate court separately held that the trial court erred in allowing the admission of the roommate’s later statement under Evidence Code section 356. “By its terms section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood.” (Gambos, supra, at p. 192.) “Joyce’s second statement, later in time, made in another room of the apartment, concerning a different parcel of narcotics, and not a ‘declaration against penal interest, ’ was irrelevant to the earlier conversation. Nor did it in any way tend to explain her statement of ownership of the narcotics found in the kitchen drawer.” (Id. at p. 193.)
In this case, in response to defense counsel’s questions, Officer Wright testified that Reid told the officer that he exited his car, that he approached defendant’s car at a time that defendant was still in his own car, and that he said “things” to defendant. Accordingly, defense counsel “opened the door” to admission of other statements by Reid that had “ ‘some bearing upon, or connection with, ’ ” his statements to the officer pursuant to Evidence Code section 356. (Zapien, supra, 4 Cal.4th at p. 959.) Then in response to the prosecutor’s questions, the officer testified as to what Reid said had happened before he exited his car, and what Reid said he said to defendant, and what Reid said he saw defendant do in response to Reid’s words. Defense counsel did not object to this testimony, and the testimony related to the same subject as the officer’s prior testimony, it placed that testimony in context, and it explained what Reid meant when he said he had said “things” to defendant. It was not until the prosecutor asked the officer what Reid said defendant said when defendant held up the stun gun that defense counsel objected. Reid’s statements to the officer about what defendant said to him are statements that have “ ‘some bearing upon, or connection with, ’ ” the admissions or statements of Reid already in evidence. (Ibid.) Unlike in Gambos, the statements were not made later in time, at a different location, or concerning a different subject matter. Accordingly, we cannot say that the trial court abused its discretion by admitting the additional statements pursuant to Evidence Code section 356. Nor can we find that defendant was prejudiced by counsel’s failure to offer an argument or objection to the prosecutor’s assertion that counsel had “opened the door” under Evidence Code section 356.
Cumulative Error
Defendant contends that the cumulative effect of the errors he alleges occurred requires that the judgment be reversed. “In the present case – where the prosecution’s evidence was weak, where counsel’s ineffective objections allowed the absent victim’s statement to be introduced entirely through hearsay and where the state spent half of its case presenting highly inflammatory prior uncharged acts evidence – it cannot be said that the overall effect of the multiple errors was harmless beyond a reasonable doubt. Reversal is required.”
“The concept of finding prejudice in cumulative effect, of course, is not new. Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. [Citations.] For example, the doctrine required reversal of a judgment when numerous minor instances of attorney misconduct during trial had a cumulatively prejudicial effect. [Citation.]” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) In this case, we have not found numerous errors by the court or counsel. Nor can we say that the prosecution’s case was weak or that the evidence of defendant’s prior acts was highly inflammatory. Therefore, we find that reversal is not required under the cumulative error doctrine in this case.
Probation Conditions
The probation officer reported that defendant submitted a detailed list of his medical conditions and of the medications recommended by his medical providers. Defendant specifically reported dementia and memory loss, bipolar disorder, and a chronic back injury. “Because of his extensive medical ailments, he takes numerous narcotic pain medications and psychotropic medications, and has provided the Probation Department with copies of the prescriptions from his medical providers.” The probation officer recommended that defendant be granted probation with various terms and conditions, including that he “[p]articipate in any therapeutic counseling or substance abuse program the Probation Officer deems necessary, including approved residential treatment, ” and that he “[t]ake all psychotropic medications as prescribed by a physician and execute a waiver of confidentiality form with [his] medical providers to allow the Probation Department to monitor compliance with recommended medical treatment and medications.” “If the defendant truly suffers from a mental health disorder or a medical condition that impairs his judgment, or negatively impacts his behavior, it is crucial that the Probation Department be made aware of his condition and monitor his compliance with any recommended treatment regimen[].”
At the sentencing hearing, defense counsel stated that he had given the court a copy of his “compilation of comments” regarding the probation report, but that he would like to make some brief comments in addition to that. Counsel orally argued: “Your Honor, with respect to the recommendation on the psychiatric treatment, I want to point out to the Court that Mr. Henness is already receiving psychiatric treatment. I was concerned if there was further treatment, they may interfere with each other.” Included in counsel’s written comments were that defendant “is already under the full care of a licensed psychiatrist who he has been seeing for a number of years. To start over with another doctor would be counterproductive.” “[Defendant] doesn’t want to give the Probation department full access to his COMPLETE medical history.” Counsel also stated that defendant has a prescription for “a liquid Morphine” and that “with the various medications that [defendant] takes on a regular basis, the test results could be skewed to show him under the influence....” “Proof of payment of medications, which states the medication should be ample evidence of medication that [defendant] takes. [Defendant] doesn’t want them having access to his medical records.”
After additional comments from counsel and the prosecutor regarding other recommendations of the probation officer, and submission of the matter, the court suspended imposition of sentence and placed defendant on probation with various terms and conditions. Three of the conditions were that defendant “[p]articipate in any therapeutic counseling or substance abuse program that probation officer deems necessary..., ” that he “[t]ake all psychotropic medication as prescribed by a physician, ” and that he “[e]xecute a waiver of confidentiality form with your medical provider to allow probation department to monitor compliance with your medical treatment and medications.” After all terms and conditions were stated, defense counsel stated, “Thank you, your Honor.”
Defendant now contends that the court violated his due process rights by imposing the probation conditions that he “[t]ake all psychotropic medication as prescribed by a physician” and “[e]xecute a waiver of confidentiality form with your medical provider to allow probation department to monitor compliance with your medical treatment and medications.” He argues that the conditions are “unnecessary, redundant, and potentially harmful.” He further argues that the conditions are unconstitutionally vague and overbroad. And, to the extent that counsel failed to raise these claims below, defendant argues that counsel rendered ineffective assistance.
The Attorney General contends that the challenged probation conditions are not improper. “The probation report, as well as [defendant’s] documents, indicated that [defendant] was already under a psychiatrist’s [care] and had been prescribed psychotropic medication. This condition must be read... as requiring [defendant] to continue his treatment and continue taking his prescribed mental health medications. On its face, it is not a requirement that [defendant] be treated by a different doctor, and there is no indication in the record that the probation department would construe the condition as allowing it to order a different treatment.” “[T]he medical waiver requirements was contained in the same condition requiring [defendant] to take all psychotropic medications as prescribed by a physician. It was clearly designed to allow the probation department to monitor [defendant’s] compliance with his ongoing medical treatment.” “In light of the entire probation condition, the medical waiver requirement is not void for vagueness.”
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal); People v. Leon (2010) 181 Cal.App.4th 943, 948 (Leon).) “The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute.” (Carbajal, supra, at p. 1121.) “Insofar as a probation condition serves the statutory purpose of ‘reformation and rehabilitation of the probationer, ’ (§ 1203.1[, subd. (j)]) it necessarily follows that such a condition is ‘reasonably related to future criminality’ and thus may not be held invalid whether or not it has any ‘relationship to the crime of which the offender was convicted.’ [Citation.]” (People v. Balestra (1999) 76 Cal.App.4th 57, 65; see also People v. Lent (1975) 15 Cal.3d 481, 486.)
“ ‘[P]robation is a privilege and not a right, and... adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights.... [Citations.]’ [Citation.] But the Supreme Court has recognized that ‘[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]’ [Citation.] Also, ‘[a] probation condition “must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ” if it is to withstand a challenge on the ground of vagueness. [Citation.]’ [Citation.]” (Leon, supra, 181 Cal.App.4th at pp. 948-949.) A probation condition will not be held void for vagueness “ ‘ “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.” ’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
“In the ordinary case in which a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendant’s offenses, a reviewing court is confined to determining whether the condition amounted to an abuse of discretion. [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 949.) “ ‘As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or “ ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ [Citations.]” [Citation.]’ [Citation.]” (Ibid.) However, a defendant may also attack probation conditions for the first time on appeal on the ground that they are unconstitutionally vague or overbroad on their face. (In re Sheena K. (2007) 40 Cal.4th 875, 889; Leon, supra, at p. 949.)
In this case, defendant informed the probation department and the court that he has been undergoing psychiatric treatment for a number of years, and that he has been prescribed and is regularly taking psychotropic medications and narcotics. The probation conditions that defendant participate in therapeutic counseling and take all psychotropic medication as prescribed are not requiring him to do anything that he is not already voluntarily doing, but they also serve the statutory purpose of the reformation and rehabilitation of defendant. (§ 1203.1, subd. (j).) In addition, we read the probation condition that defendant execute a waiver of confidentiality form so that the probation department can monitor compliance with his medical treatment and medication as intended only to allow defendant’s treating physicians to respond to the probation department’s inquiries regarding defendant’s ongoing care. It is not intended, and should not be read, as a condition requiring defendant to allow access to his complete medical records and medical history. As so construed, the probation conditions defendant challenges are not unconstitutionally overbroad or vague. And, as we have reached all of defendant’s claims on appeal that challenge the probation conditions, defendant has not been prejudiced by any failure of trial counsel to object to the probation conditions on the grounds defendant asserts here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.