Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, H. Ronald Domnitz, Judge. Affirmed as modified, Super. Ct. No. SCS193313
BENKE, J.
Debbie A. Jimenez was found guilty of elder abuse in violation of Penal Code section 368, subdivision (b)(1), assault with a deadly weapon and resisting a peace officer. As to the conviction for elder abuse, it was found true appellant used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1). Jimenez was sentenced to a prison term of four years. She appeals, arguing error in the admission of evidence, prosecutorial error, instructional error and ineffective assistance of counsel.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
In May 2005 68-year-old Loyd Austin and appellant had lived in a platonic relationship in Austin's mobile home for four or five months. One evening while the two watched television and drank beer in Austin's room, they argued about cigarettes. Appellant yelled at Austin. He told her to calm down or get out. As Austin turned around, appellant hit him several times on the head with a full beer bottle. Austin suffered a cut to his head that required three stitches to close.
When the police arrived, appellant violently resisted arrest. As she did so, she yelled that Austin hit himself in the head with the bottle to "frame" her. She claimed he did so because she refused to have sex with him. Austin denied the allegation. As appellant was taken to jail, she accused the officers of brutality and claimed they raped her.
B. Defense
Appellant testified she did not hit Austin with a bottle. She stated that the night of her arrest she entered Austin's room and noticed he was holding a towel to his head. When Austin moved the towel, appellant saw his head was injured. Appellant left the room to get first aid supplies. When she returned Austin was gone. She went to a neighbor's home where she believed Austin had gone. The neighbors refused to speak to her. Appellant went to a second neighbor and used their phone to call the police. Appellant wanted to report Austin's injury and to be sure he did not accuse her of assaulting him.
Appellant testified she protested and yelled for help but did not resist arrest. She stated the officers treated her brutally and with disrespect. Appellant denied she claimed the officers sexually assaulted her.
Austin told a defense investigator that he and appellant drank about five beers the day of the incident. Defense counsel suggested Austin might have fallen and cut his head and he made up the story of appellant's attack to avoid admitting he was an alcoholic.
C. Prosecution Rebuttal
A police officer testified that on October 30, 2004, he placed appellant in custody and transported her. After doing so, appellant accused him of raping her. The officer testified he did not rape appellant.
DISCUSSION
A. Evidence Code Section 1109 Notification
Appellant argues she was denied due process and the prosecutor engaged in misconduct when he failed to notify the defense pursuant to Evidence Code section 1109, subdivision (b), that it would offer evidence concerning a prior assault by appellant on Austin. Appellant additionally argues defense counsel's failure to object to the introduction of the evidence denied her the effective assistance of counsel. Finally, appellant argues the prosecutor engaged in misconduct when he questioned Austin about the alleged prior assault.
If the evidence is not made inadmissible under Evidence Code section 352, Evidence Code section 1109, subdivision (a)(1), makes admissible in an action in which the defendant is charged with an offense involving the abuse of an elder person evidence of the defendant's other acts of elder abuse.
If such evidence is to be offered, the prosecution must disclose it to the defense at least 30 days prior to trial unless good cause is shown why such disclosure was not made before that time. (Evid. Code, § 1109, subd. (b).)
1. Background
Prior to jury selection, the trial court asked the prosecutor if he intended to introduce evidence of prior acts. The prosecutor replied the only prior acts that would be offered would be appellant's false claims of rape. The court asked if any evidence concerning prior acts of domestic violence would be offered. The prosecutor replied that he did not believe so. The prosecutor added he had no control over whether appellant testified and that if she did, he could not say what evidence might be offered in reply.
At the start of his redirect examination of Austin, the prosecutor asked if appellant had ever given him a black eye. Austin stated that she had. Austin stated he did not recall exactly what happened. Generally, he recalled appellant got upset with him and punched him in the eye. Austin stated: "I didn't consider it to be a big deal."
Defense counsel did not object to the questions.
During his cross-examination of appellant, the prosecutor asked if she had ever blackened Austin's eye. She stated she had not.
No mention was made of the claimed eye blackening during argument.
No request was made for and the trial court did not instruct the jury in the terms of CALCRIM No. 853. That instruction states that evidence of an uncharged act of elder abuse was offered in evidence. The instruction states the standard of proof applicable to the uncharged act tells the jury if it finds the uncharged act occurred, it might or might not conclude that the defendant was disposed to commit such acts and that such conclusion is only one factor for the jury to consider in deciding whether the defendant committed the charged crime.
2. Discussion
The lack of an objection to the introduction of evidence that appellant assaulted Austin on a prior occasion makes resolving appellant's various claims of error with regard to that evidence difficult. The prosecutor's colloquy with the trial court before jury selection concerning other acts evidence might suggest no notice was given of an intent to present evidence of an uncharged act of elder abuse as required by Evidence Code section 1109, subdivision (b). We simply do not know. Given this lack of information, there is no basis for concluding notice was not given, that the prosecutor erred in failing to provide notice, or that defense counsel provided ineffective assistance by failing to object to the evidence on the basis of lack of notice.
Appellant appears to argue the prosecutor erred in not only failing to provide notice that other uncharged acts of elder abuse would be offered but in failing to submit that evidence for a section 352 review before introducing it. Appellant purports to find this requirement in that part of Evidence Code section 1109, subdivision (a)(2), stating evidence of uncharged acts of elder abuse are not made inadmissible by Evidence Code section 1101 "if the evidence is not inadmissible pursuant to Section 352," and in cases holding that the application of section 352 to Evidence Code sections like 1109, subdivision (b), is essential to the constitutionality of such sections. (See, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 916-918; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029.)
None of this suggests the prosecutor must submit evidence of uncharged acts of elder abuse for a section 352 analysis when no objection has been made to the evidence. Nothing in section 1109 indicates it was the intent of the Legislature to create such a wasteful requirement so out of keeping with the usual practice of requiring an objection before testing evidence pursuant to section 352.
Exactly what the prosecutor had in mind when he briefly questioned appellant concerning blackening Austin's eye is uncertain. Rather than use the evidence to show a disposition to commit elder abuse, the prosecutor may have used it to show that whatever appellant did to him, Austin remained her friend, a fact that affected Austin's credibility with regard to his testimony favorable to appellant. In any case, what is perhaps easier to understand is defense counsel's lack of a reaction to the questions. The prosecutor did not develop evidence concerning the eye blackening incident, e.g., when it occurred, or present evidence corroborating Austin's claim appellant had blackened his eye or attacking appellant's claim that she had not. This rendered the eye-blackening claim of little significance. Whether the jury ultimately believed it occurred or not was wholly dependent on its resolution of the same issues of credibility based on the same evidence involved in deciding whether appellant hit Austin with a bottle. Evidence of the eye-blackening incident added nothing to the case.
Given its essential meaninglessness, it is understandable neither party mentioned the claimed prior assault in argument and that neither defense counsel nor the trial court chose to inflate the importance of the prior incident by instructing the jury on how to consider it.
We find no error of any kind and certainly no prejudice in the admission of evidence concerning the claim that on some prior occasion appellant blackened Austin's eye.
B. Bad Checks
Appellant argues the trial court erred when it allowed the prosecutor to elicit from Austin evidence that appellant, without permission, wrote checks on his account. Appellant argues that before allowing such testimony, the trial court should have held a hearing to determine the basis for Austin's belief that appellant wrote such checks.
1. Background
At the end of his cross-examination of Austin, defense counsel asked if he had ever known appellant to tell falsehoods about herself or him. Austin answered "no."
On redirect examination, the prosecutor noted Austin's answer and asked if he considered appellant an honest person. Austin answered "yes." The prosecutor then asked if Austin had a checking account. When he stated that he did, the prosecutor asked if some checks were written on that account without his permission. Defense counsel objected. The court overruled the objection, stating that defense counsel opened the issue of appellant veracity. The prosecutor asked if Austin determined who wrote the checks. With some reluctance and over more defense objections, including hearsay objections, Austin stated: "As far as I know, [appellant] did." The prosecutor established that some of Austin's checks to his mobile home park were returned for insufficient funds and that the money should have been in his account because his government checks were directly deposited. The prosecutor then asked: "Do you still think she's honest?" Austin answered: "Not now, no. I did before."
On recross-examination defense counsel established that Austin did not attempt to have appellant charged with a crime arising from his loss of funds. Counsel established Austin never saw appellant write a check on his account and that other people told him it was probably appellant who wrote the checks. Defense counsel asked: "You don't know if she's the one or not, do you?" Austin answered: "I have no idea."
The trial court immediately told the jury the evidence was not admitted to prove appellant wrote the checks on Austin's account, rather the evidence was admitted "to show what forms the basis of his opinion regarding her trustworthiness, honesty, and veracity. That's all."
The prosecutor on further redirect examination asked Austin if he still liked appellant. He said that he did, that he felt like she was his daughter. The prosecutor asked: "You don't want to hurt her, do you?" Austin answered: "No, I do not."
2. Discussion
Appellant argues the trial court erred when before allowing the prosecutor to question Austin concerning his belief that appellant wrote checks on his account without permission, it did not first hold a hearing to determine the basis of Austin's belief.
Appellant finds this claimed requirement in People v. Eli (1967) 66 Cal.2d 63, 79. In Eli the defendant offered witnesses who testified to his good reputation for being law abiding and nonviolent. On cross-examination the prosecutor asked the witnesses if they heard the defendant committed a series of thefts, been absent without leave from the Navy and forced his girlfriend to watch him masturbate. The prosecutor then asked the witnesses their opinions concerning the defendant after having heard about those acts. (Id. at pp. 77-78.)
The court in Eli noted that a defendant may offer opinion and reputation evidence concerning his character and the prosecution may then offer evidence to the contrary. As a general matter, the prosecutor in response may question the defense witnesses concerning "rumors, talk, and reports circulating in the community." (Id. at p. 78.) There are limits, however. The prosecutor may not rely on " 'irresponsible gossip, innuendo and smear.' " (Id. at p. 79.) In short, "Counsel must not be permitted to take random shots at a reputation imprudently exposed, or to ask groundless questions 'to waft an unwarranted innuendo into the jury box' [citation]." (Id. at p. 79.)
In dealing with this danger, the court stated that trial courts have various means to deal with the potential for prejudice. One is for the court to hold a hearing, outside the presence of the jury, to determine that the described event was an actual event which would probably result in comment among the defendant's acquaintances and injury to the defendant's reputation. (People v. Eli, supra, 66 Cal.2d at p. 79.)
In People v. Ramos (1997) 15 Cal.4th 1133 the court explained the "the primary concern in restricting impeachment inquiry of this nature is with the good faith belief in its foundation." (Id. at pp. 1173.) As was stated in People v. Gonzales (1967) 66 Cal.2d 482, 502: "One of the dangers sought to be minimized by Eli was that of the question, based upon a paucity or a total lack of factual support, which is asked with little or no hope of affirmative response and with the basic purpose of creating through innuendo that which cannot be established by proof." (Ibid.)
These concerns and remedies apply not only to reputation evidence but opinion evidence concerning character. (People v. Ramos, supra, 15 Cal.4th at p. 1173.)
In this case appellant's defense was that she did not hit Austin with a bottle. As is sometimes true in domestic violence cases, Austin was not altogether favorably disposed to the prosecution. Appellant attempted to bolster her credibility and, thus, her defense by eliciting from Austin his opinion that appellant was an honest person. In response, the prosecution questioned Austin concerning his opinion that appellant had engaged in the dishonest act of writing checks on his account without his permission.
This was not like the situation in Eli where the prosecution questioned defense character witnesses by asking if they knew of specific bad acts committed by the defendant with no showing that the question was asked in good faith. Here, the prosecution was attempting to impeach Austin's opinion concerning appellant's honesty by showing he believed that without his permission she wrote checks on his account. Austin was a malleable witness. He clearly did not want to see his friend convicted of assaulting him. He said he believed appellant was honest, and he also said he did not believe appellant was honest. The prosecutor did not ask his questions concerning Austin's belief that appellant stole money from him in bad faith and the jury was provided valuable evidence to judge Austin's credibility concerning his opinion of appellant's character.
C. Instruction on Definition of Deadly Weapon
Appellant notes she was charged with assault with a deadly weapon and that it was alleged as to the charge of elder abuse she used a deadly weapon within the meaning of section 12022, subdivision (b)(1). In both instances the alleged weapon was a beer bottle. Appellant argues the trial court erred when in instructing on the personal use of a deadly weapon in the terms of CALCRIM No. 3145 it failed sua sponte to give that part of the instruction which tells the jury the factors it may consider in deciding whether an object is a deadly weapon.
The jury was told in the terms of CALCRIM No. 3145: "A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
The trial court did not give that part of CALRIM No. 3145 which states: "[In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed[.] [and] [where the person who possessed the object was going[] [and] [whether the object was changed from its standard form] [and] any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.]"]
A trial court must instruct sua sponte that a deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. A court is not required to instruct concerning the types of evidence that are relevant to deciding whether a particular object is a deadly or dangerous weapon. (See People v. Seaton (2001) 26 Cal.4th 598, 665 [dealing with CALJIC No. 12.42, an instruction indistinguishable for present purposes from that part of CALCRIM No. 3145 omitted by the trial court].)
In any event, no harm was done appellant by the failure to give an instruction concerning the factors relevant to deciding if an object is a deadly weapon. Appellant hit Austin several times on the head with a full beer bottle. Some objects such as baseball bats, belaying pins and beer bottles, while having legitimate nonviolent uses, are, nonetheless, classic weapons sought out by those who would kill or do serious injury. Even had the jury been instructed as appellant now suggests, there would have been no different result in this case.
D. Reasonable Doubt Instruction
Appellant argues that the trial court's use of CALCRIM No. 220, concerning the standard of proof in criminal cases, violated her right to due process because, taken together, the instructions precluded the jury from considering whether a lack of evidence raised a reasonable doubt.
CALCRIM No. 220, as given by the trial court, provides in relevant part: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty."
Appellant argues that CALCRIM No. 220 requires the jury, "[i]n deciding whether the People have proved their case beyond a reasonable doubt, [to] impartially compare and consider all the evidence that was received throughout the entire trial." (Italics added.) Appellant contends this instruction permitted the jury to consider only whether the evidence received at trial gave rise to a reasonable doubt, not whether a lack of evidence gave rise to a reasonable doubt. Appellant argues the result was that she was effectively required to prove that she was not guilty.
Defendant relies on People v. Simpson (1954) 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169. Neither case is determinative. In Simpson the defendant argued that the trial court's instruction on reasonable doubt had shifted the burden to the defendant to prove his innocence. In relevant part, the trial court instructed the jury: " 'The term "reasonable doubt," as used in these instructions, means a doubt which has some good reason for its existence arising out of the evidence in the case; such doubt as you are able to find a reason for in the evidence.' " (People v. Simpson, supra, 43 Cal.2d at p. 565.) The Supreme Court held this language was "not necessary" and "could have been confusing" because "reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566.) The court nevertheless concluded that "under the circumstances here prevailing," it did not believe "the jury could have been confused, or the defendant prejudiced" by the instruction. (Ibid.)
In People v. McCullough, supra, 100 Cal.App.3d at pages 180-182, the trial court orally answered jurors' questions regarding the definition of reasonable doubt. A juror asked: "So then the doubt must arise from evidence?" The trial court answered: "Well, I would answer that yes, . . . if your question is−what is reasonable doubt−reasonable doubt is that state of the case which, after a comparison and consideration of all the evidence−that is the evidence introduced in the trial− . . . consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (Id. at p. 181.) The Court of Appeal held: "[T]he trial court misled the jury by telling it that the 'doubt must arise from the evidence' [because] 'reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced.' " (Id. at p. 182.) The court concluded, however, the error was harmless. (Id. at p. 183.)
Unlike both People v. Simpson, supra, 43 Cal.2d 553 and People v. McCullough, supra, 100 Cal.App.3d 169, the trial court in this case did not instruct the jury that reasonable doubt must arise from the evidence. Rather, the trial court instructed the jury that, in deciding whether the prosecution met its burden of proof, the jury must "compare and consider all the evidence." Nothing in the trial court's instructions communicated to the jury that it could not consider a lack of evidence in deciding whether the prosecution met its burden to prove defendant guilty beyond a reasonable doubt.
E. Ineffective Assistance of Counsel
Appellant argues trial counsel was ineffective when he failed to offer evidence to impeach an officer's testimony that he thought he saw blood on one of the beer bottles found in Austin's bedroom.
1. Background
On direct examination, Officer Phillips testified he thought he saw blood on one of the bottles of beer in Austin's bedroom after appellant was arrested.
In his argument, defense counsel told the jury there were two questions: how was Austin injured and how serious were his injuries? Counsel suggested that even if appellant assaulted Austin, the crimes were not the felonies charged but lesser included misdemeanors. Defense counsel argued that the only real possibilities were appellant hit Austin or Austin fell down and hurt himself. Counsel stated Austin did not want to admit that he had an alcohol problem so he stated he was hurt not in a fall but as the result of appellant assaulting him.
During rebuttal argument, the prosecutor asked the jury to remember that an officer testified "there was blood on one of the bottles recovered in the bedroom."
After the conclusion of argument and before the jury began deliberations, defense counsel noted the prosecutor's mention during argument of Phillips's testimony that there was blood on one of the bottles found in the bedroom. Counsel stated he did not hear Philips so testify, probably because appellant was talking to him. Counsel noted Phillips did not mention in his report seeing blood on a bottle. Counsel stated that all the bottles were tested by the police laboratory and no blood was found on them.
The court asked counsel what he wanted the court to do. After lunch recess, at 1:46 p.m., the matter was again discussed. Counsel repeated he did not hear the officer testify to seeing blood on a beer bottle and the officer's report did not mention such an observation. The court again asked counsel what he wanted the court to do. Counsel noted the bottles were examined in a police laboratory and no bloodstains or fingerprints were found. Counsel stated he would like to enter into a stipulation with the prosecutor concerning the matter. The court stated if the parties could agree to a stipulation, it would read it to the jury.
After counsel met with the prosecutor, the hearing continued. Counsel noted he agreed with the prosecutor the matter of blood on the bottles could have been addressed at trial. Counsel noted he could have presented evidence concerning the failure of the laboratory to find blood on the bottles. He did not do so because in his report Phillips did not say he saw blood on one of the bottles and he did not hear Phillips so testify. Counsel stated the compromise the parties reached was to enter into a stipulation.
The prosecutor stated for the record that defense counsel asked him to stipulate, apparently in light of the laboratory report, there was no blood on the bottles. The prosecutor stated he refused to do so because Officer Phillips testified at trial he thought he saw blood on a bottle. The prosecutor noted Phillips also indicated the bottles were wet on the outside. The prosecutor noted there was evidence the bottles were handled during the evening by Austin and appellant and yet the laboratory found no fingerprints on them. Apparently, the lab did not examine the bottles immediately. The prosecutor stated that given the wet state of the bottles, a failure of the laboratory to find stains on them did not mean Phillips's observation of bloodstains on a bottle was in error. The prosecutor stated he had no opportunity to present such evidence and argument at trial and he could not, therefore, stipulate there was no blood on the bottles.
Defense counsel also made a statement for the record. He stated that he was well aware of the laboratory report saying there were no stains on the beer bottles. Counsel recognized that had the matter been addressed at trial, both sides could have presented evidence on the issue. Counsel noted he argued to the jury that the police exaggerated their observation concerning appellant and the incident and he could have used Phillips's statement that he saw blood stains on one of the bottles, in light of the laboratory report, as an additional example of such exaggeration. Counsel stated that given both his and the prosecutor's comments, he was willing to enter into the agreed upon stipulation.
The following statement was read to the jury: "The case was reopened to receive the following evidentiary stipulation: The People and the defense stipulate that Officer Phillips made no reference in his written report about seeing blood on one of the beer bottles. You have been previously instructed on the law regarding stipulations."
2. Law
A criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. A defendant must show the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. Prejudice exists when it is reasonably probable that but for such deficient assistance the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the case. We defer to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
3. Discussion
Defense counsel stated, and there is no reason to doubt him, he did not hear Officer Phillips testify he believed he saw blood on one of the beer bottles in Austin's bedroom. While counsel could not say exactly why he missed the statement, he noted that appellant was a difficult client who talked to him often during testimony.
Missing testimony is not a good thing. Still, Phillips's statement about stains on a beer bottle was brief and came during foundational questions and answers concerning the officer's arrival at Austin's home and his entry into the bedroom. The officer's statement was not made in response to a specific question about beer bottles or stains. The prosecutor simply asked what the officer found in Austin's room. Defense counsel had no reason to expect the questioning would elicit a statement that the officer believed he saw blood stains on a bottle. Phillips had not so stated in his report.
Under the circumstances we conclude that missing Phillips's brief comment does not amount in itself to the ineffective assistance of counsel. Defense counsel eventually realized the statement concerning blood stains was made, that it was potentially damaging to the defense and that some action was required to eliminate or at least mitigate that damage. The question then is whether counsel's attempts to do so amounted to ineffective assistance.
Counsel could have asked to reopen the defense case to show that Phillips had not stated in his report he saw what he believed were bloodstains on one of the bottles and the police laboratory found no such stains. Whether his request would have been granted is, of course, a matter of speculation. Counsel instead asked the prosecutor to enter into a stipulation that there was no blood on the bottles. This the prosecutor understandably would not do because given the condition of the bottles and the delay in the laboratory's examination of them, the lack of a finding of stains did not establish there were none when Phillips first saw the bottle.
The prosecutor did agree to stipulate there was no mention in Phillips's report of bloodstains on the bottles. This was important because it not only suggested, in the absence of other evidence, that Phillips's testimony on stains was suspect but it also supported the defense claim that for a host of reasons the police were exaggerating the evidence against appellant.
In light of the prosecutor's refusal to stipulate there were no stains on the bottles, counsel undoubtedly considered a motion to reopen his case to offer evidence concerning the laboratory findings. We conclude, however, counsel could reasonably have rejected such a plan. If counsel had offered evidence that the laboratory found no stains, the prosecutor would have countered with evidence that given the condition of the bottles the night of the crime, i.e., they were wet (indeed no fingerprints were found on the bottles), and the delay in examining them, there was a plausible explanation for the failure to find stains. Defense counsel, after all, was aware of the laboratory's failure to find stains and chose not to offer that evidence in his case. Counsel could conclude nothing meaningful was to be gained by reopening his case to offer evidence concerning the laboratory findings and allowing the prosecutor to explain away that evidence.
Additionally, had defense counsel insisted on reopening his case to offer evidence concerning the laboratory findings, the prosecutor would have undoubtedly refused to stipulate that Phillips had failed in his report to mention the bloodstains. This would have required calling Phillips and giving him an opportunity to explain his omission. As a tactical matter, it was reasonable for counsel to conclude his best course was to accept the prosecution stipulation and not seek to reopen his case.
Appellant has failed to show on appeal that she was denied the effective assistance of counsel.
The judgment is affirmed. The abstract of judgment is ordered corrected to show that in count 1 appellant was convicted of a violation of section 368, subdivision (b)(1), and that the sentence enhancement attached to count 1 is that defined in section 12022, subdivision (b)(1).
I CONCUR: McCONNELL, P. J., McINTYRE, J.