Opinion
A149521
08-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOSEPH RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 15-NF-001235A)
Appellant was convicted, following a jury trial, of making criminal threats, stalking, battery, possession of a device for smoking a controlled substance, being under the influence of a controlled substance, and contempt of court. On appeal, he contends (1) the trial court erred and violated his due process rights when it admitted evidence of prior acts of domestic violence pursuant to Evidence Code sections 1109 and 1101, subdivision (b); (2) the court abused its discretion when it refused to exclude the prior domestic violence evidence pursuant to section 352; (3) the court erred when it failed to instruct the jury sua sponte with CALCRIM No. 850, regarding expert testimony on intimate partner battering; (4) the court erred when it permitted a police officer to testify as an expert witness where the officer improperly relied on numerous hearsay accounts of domestic abuse as a basis for her opinions and, moreover, was unqualified to testify as an expert; (5) the court erred when it failed to appoint new counsel to investigate appellant's ineffective assistance of counsel claims regarding matters occurring outside of trial and to determine whether to file a new trial motion; and (6) remand is required for resentencing due to sentencing error. We shall remand for resentencing, but shall otherwise affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with criminal threats (Pen. Code, § 422, subd. (a)—count 1); stalking (Pen. Code, § 646.9, subd. (a)-count 2); possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364.1—count 3); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)—count 4); assault with caustic chemicals (Pen. Code, § 244—count 5); battery (Pen. Code, § 243, subd. (e)(1)—count 6); and contempt of court (Pen. Code, § 166, subd. C)(1)—count 7). The amended information alleged, as to counts 1 and 5, enhancements for five prior serious felonies (Pen. Code, § 667, subd. (a)), and, as to counts 1, 2, and 5, five prior strike convictions (Pen. Code, §§ 667, subds. (b)-(j), 1170.12) and six prior prison terms (Pen. Code, § 667.5, subd. (b)).
On May 11, 2016, following a jury trial, the jury found appellant not guilty of assault with caustic chemicals, but found him guilty on the six remaining counts.
On May 12, 2016, following a bench trial, the court found true the prior convictions and prior prison terms alleged in the information.
On September 28, 2016, the court granted appellant's motion to strike four of five prior strike convictions. The court then sentenced appellant to a total term of 27 years in prison.
Also on September 28, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Appellant's former wife (hereafter Jane Doe), testified that she met appellant in 2001 or 2002. They immediately became romantically involved and she became pregnant with their son approximately six months later. Jane already had two other sons. Their relationship was "on and off," a mix of good and bad. By late 2005, appellant had battered Jane on approximately 10 occasions: "Pulling my hair, punching me in the head, hitting me all over my body." He would also sometimes say things like, " 'I'm going to kill you, bitch,' " which made her feel "very scared."
Jane testified that on October 29, 2005, she was traveling in a car with appellant, their son, and appellant's friend on Junipero Serra Boulevard in Daly City when appellant asked his friend, who was driving, to stop the car. Appellant had become upset because Jane said she wanted to leave him. Once the car stopped, Jane, appellant, and their son got out. Appellant said something like he was going to kick her ass and tried to slap or punch her in the face. Jane then started running because she was scared of him. Appellant chased after her and their son was left behind in his stroller. A couple approached, and Jane stopped and spoke with the woman. Jane was shaking and crying, and her voice trembled when she talked. Another incident took place on October 1, 2005. Jane was with her sister in Daly City when appellant came to their location and argued with her sister. Appellant threatened her sister, although Jane no longer recalled what he said. The threat made her feel upset and scared, and worried for her sister.
When asking Jane about the two incidents that took place in the fall of 2006, the prosecutor misstated the date of a September 29, 2005 incident as October 29. It also appears that, in asking about the October 1 and September 29 incidents, the prosecutor reversed the dates when appellant threatened Jane and when he threatened her sister.
Appellant was arrested on the day of the incident on Junipero Serra Boulevard. Jane was not truthful at the court hearing regarding the two incidents that took place in 2005 because she "didn't want to see [appellant] go away" and "still loved him regardless." She did not want to get appellant into trouble and that influenced what she said in court. There was a trial in that case and appellant ultimately went away for some time.
Before appellant went away, he and Jane were back together for several months even though there was a restraining order in effect. On April 19, 2006, some church members gave Jane and two of her children a ride home after Bible study. As she got out of the car, appellant was waiting for her and he was upset. He tried to pull her out of the car and, as she recalled, he had a belt in his hand. Her friend's husband got in between her and appellant. Jane felt scared. She did not know what the belt was for, "but [she] just [knew] it wasn't going to be nice."
On July 6, 2006, the police came to her home after appellant had been calling her several times a day. The calls "were mean. They were threatening." He called her a bitch.
The parties stipulated that on October 11, 2006, appellant " 'was convicted of attempted domestic violence and false imprisonment as to [Jane Doe] and of criminal threats against her sister.' " He was released from prison on July 6, 2014.
While appellant was in prison, Jane filed for a divorce, which was finalized while he was still in prison. After appellant was released, they started talking again. Jane had just ended a relationship and was still in love with the other person. She told appellant this, but he said he did not care. She did not want to hurt him, so she just "let it happen like an idiot"; she let him move back in with her. She told herself he was her son's father and " '[w]e'll see what happens.' "
About a month after they got back together, appellant started going back to "his old ways," physically and verbally abusing her. Jealousy was an issue for both of them in their relationship, but appellant was concerned "[a]ll the time" about whether she had been faithful. Jane wanted to end the relationship, which appellant was not happy about.
On an evening in 2015, a few weeks before appellant's arrest, Jane came home after spending approximately two nights at her friend Kika's house, took a shower, and lay down on the bed. Appellant came home and they began to argue. Appellant was making accusations against her based on her being gone and taking a shower. They argued for 20 or 30 minutes before the interaction turned physical. Jane started whining, which appellant did not like, and he started punching her. He punched her 5 to 10 times in the ribs in her back; the ribs hurt for a month afterwards. He then threw a bucket of dirty laundry water at her.
After throwing the water, appellant got a container of lighter fluid and squirted it onto Jane's hair and chest, saying he was going to burn her. He also squirted some of the lighter fluid into his mouth. He said they were "both going to die." She was scared he was going to burn her and kill her. Jane's roommate came home and appellant told Jane to come outside. He said to hurry up and get dressed, and called her a "fucking bitch." She went outside with him because she was scared. She believed it would "make things worse" if she did not do what he said.
Jane estimated that appellant assaulted her approximately 10 times after his 2014 release from prison. He also threatened to hurt her many times. When asked if she believed the threats were "shit talking" or "for real," Jane responded, "[a] little bit of both." She was never sure if appellant would follow through on his threats, but she mainly felt "very fearful."
On the evening of November 30, 2015, Jane called the Daly City Police Department from a friend's house because she wanted help getting appellant out of her apartment. She told police that appellant had threatened her, including in voicemail messages. She then met with several officers near her house. The following day, she met with an officer and played voicemail messages she had received from appellant between November 25 and November 30. The voicemails were played for the jury at trial.
In one voicemail, appellant said, " 'The person who does the accusing is the one that's doing wrong. You proved it, [Jane]. You got fucked for now, but when I see you, it's my turn. I'm gonna have my fun too.' " Jane believed appellant was referring to getting back at her for supposedly being unfaithful by physically hurting her. Another voicemail said, " 'It's my turn. I'm gonna have fun too. You wanna get fucked, you're gonna get fucked. All right?' " He also said, " 'You're gonna make a movie' in reference to 'how many dicks you can take at the same time.' " Jane testified that these messages were an attempt by appellant "to put me down, degrade me, make me feel bad about myself." She had previously heard him tell his friends, when he was upset with her, that they could have sex with her or hurt her. Another message said, " 'You should see the shit I see in my head. A movie. You see "Hellraisers"? . . . You are not invisible, [Jane].' " She took this message to mean that she could not hide, that she could be found. The message made her feel disgusted, sick, and scared.
Appellant left a voicemail in which he said, " 'This pain is going to turn into a fucking rage." Another referred to " 'the scars on your fucking face' "; Jane had no scars on her face at that time. In another voicemail, he said, " 'What the homies are going to do for the shit you've done.' " He also referred to " '[a]ll those bitches I know that wanted to fuck you up.' " When appellant said in a voicemail, " 'You deserve whatever you get, [Jane],' " Jane believed he was saying he was going to hurt her or send someone to hurt her.
Jane had previously told appellant she wanted to go to Florida, where her brother lived. Appellant left a message, stating, " 'Go to fucking Florida, [Jane], cause it ain't cool for you around here no more,' " and another that said, " 'you better get the fuck out of California.' " These messages scared her; she was afraid appellant would physically assault her. He also said in another message, " 'I could kill a motherfucker in a heartbeat. . . .' "
Appellant left a message that said, " 'You let some mother fuck you, [Jane], in the ass and everything. You know that? But you know what that cost you, [Jane]? That fucking cost you . . . .' " This message made Jane feel scared that appellant would physically hurt her. Another message said, " 'When you suffer, it's not going to be worth it, [Jane]. And you're going to beg; you're going to beg.' " Previously, when appellant would assault her, Jane would sometimes beg him to stop. Another message said, " 'hearing you getting fucked bitch' " and " 'I hope that dick was worth it, you mother fucking ho. You watch, motherfucker.' " She took this message as a threat to hurt her.
Appellant also accused Jane in a message of previously " 'ratting' " on him when he went to prison. In another voicemail, he said, " 'The homies wanted to kill you. Now I am telling them to do what they want. I saved your ass many times, [Jane], because you ratted. . . . We got homeboys everywhere, Miami, Florida, everywhere, [Jane]. You just don't know what the fuck you did.' " Jane was scared of appellant's friends because they were troublemakers and because friends kill people who "rat." Appellant had told her his friends did not like her because she told on him in the previous case.
Jane testified that she was receiving some of these voicemails "every hour, every five minutes, every day, through the night" between November 25 and November 30, 2015. When she listened to appellant's voicemails and "he started pumping all that fear in [her]," she got scared to the point of crying, getting paranoid, and having panic attacks. She had stayed away from her home for the several days during which he left the voicemail messages because she was tired of the abuse. If she told him to leave, he would start abusing her physically, so she had to "run away from home." Even though he was "always" hitting her, she "just knew that this time, because of the past, that this time he was not going to let me go that easily." When she listened to the voicemails at trial they still made Jane feel fearful.
Appellant was arrested on November 30, 2015, in the current matter. Jane testified that, after his arrest, she communicated with him through phone calls, emails, and text messages. She also received approximately 10 letters from him. In one letter he sent from jail, appellant wrote, " 'The victim must now inform the judge that fear never occurred, only anger.' " He also talked to her about this in phone calls. Appellant wrote in another letter that the judge must be " 'convinced, it was talking shit only,' " i.e., that it was not a big deal and she was not scared. Jane testified that the threats he left on her voicemail were not just " 'shit talking' " because "he's hurt me before, and he's always lied to me and told me this is the last time he'll hit me, and he always betrayed me, and it always happened again." Appellant sent her other letters and talked to her on the phone about how she should testify and do other things to protect him. He told her to " 'tell the truth,' " which meant that she should lie about what had happened.
In December 2015, a protective order was apparently issued, which prohibited appellant from contacting Jane.
Initially, after appellant was arrested, Jane felt confused, hurt, and angry. She also felt bad for appellant, and felt bad about getting him in trouble, especially because he was the father of her son. But her feelings had changed over time. Through therapy and reading about domestic violence, she had become a stronger person and understood that she did not deserve to be treated the way appellant treated her. After a while, Jane stopped reading appellant's text messages and stopped taking his calls.
On cross-examination, Jane acknowledged that she had told appellant that she would kill him in his sleep and cut off his penis if she ever found out he cheated on her. But appellant knew she would never dare to hurt him. Although they "were always swearing at each other and saying hurtful things back and forth," there was a "big difference" between the two of them in that appellant was not afraid of her, while she was afraid of him. Jane also acknowledged that she occasionally used methamphetamine between 2006 and 2015.
Daly City Police Detective Garrett Larsen testified that he responded to Jane's call to police on November 30, 2015. When he met with her near her apartment, "[s]he appeared frantic, frightened, kind of, did not know what to do." Larsen and another officer knocked on the door of Jane's apartment and appellant opened the door. Appellant told them he had smoked methamphetamine approximately two hours earlier. The officers found three pipes and other paraphernalia used for smoking methamphetamine. Larsen subsequently evaluated appellant, administering several tests to determine if he was under the influence. The results suggested that he was under the influence of a stimulant. When Larsen asked appellant to provide a sample for drug testing, appellant responded, " 'I'm not going to piss. I already admitted to you I smoke methamphetamine. I know I'm going to piss dirty.' "
The next day, December 1, 2015, Larsen and another officer again met with Jane, who appeared upset and was concerned for her safety. As the officers played the 20 to 25 minutes of voicemail messages from appellant, she was breathing heavily and "had a wide-eyed look to her." Jane was crying throughout the time the messages were being played and her voice shook when she spoke.
Linda Gibbons, a sergeant with the San Mateo County Sheriff's Office, testified as an expert on domestic violence. She had not read any police reports relating to the present case, either from 2015 or earlier; nor had she ever met the alleged victim or the defendant.
Gibbons believed police officers need specific training regarding domestic violence because the dynamics are different from other assaults due to the intimacy between the parties. She also believed the public is not well informed about domestic violence and there are common myths, including that it only happens in lower socioeconomic groups and among certain cultural groups. Other myths include that it is a private, family matter, not a crime, and that the victim is to blame. Another myth is that the victim can leave at any time and that leaving will necessarily increase the victim's safety.
Gibbons described the concept of the "cycle of violence," in which there are three phases: the "escalation" phase, in which "the abuser is ramping up and becoming more agitated"; the "explosion" phase, during which the assault actually occurs; the "honeymoon" phase, in which the parties make up and the abuser claims it will never happen again; and the "walking on eggshells" phase, where the cycle begins again.
Gibbons also discussed the reasons a victim might stay with an abuser, such as being in love with him, financial concerns, religious beliefs, wanting to keep the family together, fear of being deported, or not wanting to become involved with the legal system. The victim might also fear that reporting the abuse to police will only make it worse, once the abuser is released from custody. The victim will often have low self-esteem and may blame herself for the abuse, believing it is her fault. She may also believe that she can fix the abuser or may be in denial about the abuse.
For these reasons, victims often try to protect their abusers, and it is not uncommon for the victim to be reluctant to participate in the legal process. Victims sometimes hide from the authorities, refuse medical treatment, and lie in court. In Gibbons's experience, it was "the exception rather than the rule where a victim will either stay cooperative or become cooperative with the process. [¶] More often, many more times than not, a victim does not want to be involved . . . with the system." Victims might be willing to lie in court for various reasons, including fear of future abuse, not wanting to be responsible for sending the abuser to jail, or wanting life to go on with their romantic partner.
Abusers also use emotional abuse to control their victim, which can include constant putdowns and negative comments. Emotional abuse can also involve frequent threats, which instill fear in the victim. Threats may not always lead to a physical assault, but if they have led to assaults in the past, the victim will know that an explosion is likely to happen again. Threats cause a great deal of stress for the victim. Victims sometimes try to recant or minimize verbal abuse and threats by claiming, " '[h]e didn't mean anything by it. It's no big deal, and I'm the same way.' "
According to Gibbons, multiple phone calls from an abuser in a short period of time can be an assertion of power, intended to intimidate the victim. When an abuser tells a victim to tell the truth, they really mean, " 'Tell a lie.' " Sometimes on recorded jail calls, an inmate will say this to remind the listener not to tell the truth because that would get the inmate in trouble.
On cross-examination, Gibbons testified that, at times, the woman can be the aggressor or there can be mutual violence. The police must "look at the entire situation . . . to determine the dominant aggressor."
DISCUSSION
I. Prior Domestic Violence Evidence
Appellant contends the trial court erred and violated his due process rights when it admitted prior domestic violence evidence pursuant to sections 1109 and 1101, subdivision (b). He also contends the court abused its discretion when it failed to exclude this evidence pursuant to section 352.
A. Trial Court Background
Before trial, the prosecutor filed a motion in limine for the admission of prior incidents of domestic violence, pursuant to section 1109, as propensity evidence, and section 1101, subdivision (b), to show intent or absence of mistake or accident. The prosecutor also argued that section 352 did not bar admission of this evidence. Appellant moved in limine to exclude any mention of prior incidents of misconduct, pursuant to sections 1109, 1101, subdivision (b), and 352.
At a hearing on the motions, defense counsel argued that the prior conduct was inadmissible because section 1109, subdivision (e) only permitted admission of acts that took place within 10 years of the charged offense. He also noted that many of the prior acts involved charges that had been dismissed by the prosecution, and so did not lead to convictions.
The court first found, as to section 1109, that evidence from just over 10 years earlier was admissible, explaining that appellant had been "incarcerated for a domestic violence conviction from 2005 through 2014. Within 15 months of his release, he's accused of the same recidivist conduct that was contemplated by the [L]egislature in enacting [section] 1109. [¶] . . . . And it's the court's ruling that he shouldn't benefit from the fact that he was unable to continue the pattern of behavior he is alleged to have displayed simply because he was in custody and was less than one month outside of the ten years contemplated by [section] 1109 . . . . So yes, there is a bright-line rule of ten years, and given how close it was and the fact that he was actually incarcerated and for a significant period of time and very shortly thereafter continued the conduct, in the interest of justice, I am allowing prior acts and convictions into evidence just as the [L]egislature contemplated.
"Then I go to the [section] 352 analysis, because the probative nature of these prior acts, whether charged and adjudicated or not, in establishing the existence of a common design or plan [sic] outweigh the prejudicial effects.
"In the [Penal Code section] 422 charge [for making criminal threats], there is context to the past acts that has an effect on the alleged victim, given their history, which is probative to the effect on the alleged victim, which is also a necessary element of the offense that must be proved. [¶] The jury will also be aware that he was already convicted of that, and so the likelihood of punishing him again for that act is de minimis."
The court then found, pursuant to section 1101, subdivision (b), that intent was relevant in the case: "It's a necessary element of the offense. And given the probative value of those past acts, it outweighs the threat of undue consumption of time, and it outweighs the . . . creative [sic] substantial danger of undue prejudice, or confusion of issues, because I will give [a limiting] instruction as to the purpose of the [section] 1101 evidence." The court further stated that this case involved "alleged threats, and the alleged victim's knowledge of his prior convictions and history, given that most of it was with her anyway, is relevant to the effect on the recipient of those threats. So I am allowing her knowledge of the [section] 422 [criminal threats] and [section] 646.9 [stalking] to come into evidence as well."
The court then said it had forgotten to mention that it had found that evidence of prior conduct for which the charges were dismissed was also admissible. Defense counsel said he understood "what the law is, and I never claimed that the law was anything different than what you just said. . . . [¶] But I was throwing that factor in as something important in the court making its judgment under [section] 352."
The prosecutor told the court, specifically, that the prosecution wanted to present evidence regarding an instance from the prior case that took place on October 1, 2005, when appellant threatened Jane. The prosecution also wanted to present evidence of the threats against both Jane and her sister on September 29, 2005; appellant was convicted of the threat against Jane's sister, but not convicted of the threats that day against Jane. The court responded that, as to the September 29 incident, it would only permit the prosecutor to present evidence regarding the threat against Jane's sister, which took place when Jane was also present. It would not allow him to present evidence of threats against Jane from that date because appellant was found not guilty of those threats. The court again mentioned that it would allow the prosecutor to present evidence from several dismissed cases, including evidence of appellant's conduct on April 19 and April 29, 2006, which involved restraining order violations; conduct on June 30, 2006, when appellant "had made threats that he was going to hurt [Jane] if she left him. And he would kill her if she called the police"; and conduct on July 6, 2006.
During trial, Jane testified regarding the threat appellant made against her sister on September 29, 2005, and the threat he made against Jane herself on October 1. Jane also testified about the April 19, 2006 incident when appellant tried to pull her out of a car with a belt in his hand and the July 6 incident when appellant made threatening phone calls to Jane.
B. Legal Analysis
We review the court's rulings on the admissibility of evidence under sections 1109; 1101, subdivision (b); and 352 for an abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson); People v. Mungia (2008) 44 Cal.4th 1101, 1130 (Mungia).)
1. Section 1109
Section 1109, subdivision (a)(1) provides in relevant part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352
The legislative history related to section 1109 reflects the Legislature's belief that " '[t]he propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.' (Assem. Com. Rep. on Public Safety Report (June 25, 1996) pp. 3-4.)" (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)
In the present case, appellant first argues that two of the prior incidents of domestic violence regarding which Jane testified occurred more than 10 years before the charged offenses and therefore were inadmissible as prior acts of domestic violence under section 1109. Those incidents include the September 29, 2005 threat against Jane's sister and the October 1, 2005 incident on Junipero Serra Boulevard when appellant threatened Jane. He also challenges Jane's general testimony that, even before those dates, appellant had assaulted and threatened her on a number of occasions.
Subdivision (e) of section 1109 provides: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice." This subdivision "establishes a presumption that conduct more than 10 years prior to the current offense is inadmissible. But, . . . it sets a threshold of presumed inadmissibility, not the outer limit of admissibility. It clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an 'interest of justice' standard. We therefore review that determination for abuse of discretion. [Citation.]" (Johnson, supra, 185 Cal.App.4th at p. 539.)
Here, the court permitted Jane to testify about the prior incident that took place on October 1, 2005 on Junipero Serra Boulevard, in which she got out of a car she had been riding in with appellant, and appellant said he was going to kick her ass. He also tried to hit her in the face and chased her. As noted, the court admitted this evidence, "given how close it was [to the 10-year mark] and the fact that he was actually incarcerated and for a significant period of time and very shortly [after his release] continued the conduct, in the interest of justice." We find the court did not abuse its "substantial discretion" when it found this evidence admissible in the interest of justice, given that the incident took place barely one month past the 10-year period and only some 15 months after appellant was released from prison after almost eight years. (Johnson, supra, 185 Cal.App.4th at p. 539; see § 1109, subd. (e)(3).)
Appellant points out that the evidence showed that he continued to contact Jane in the current case while he was in jail pending trial, which he asserts shows that he could have also harassed her during the years he was in prison following his 2006 convictions, but chose not to do so. We do not believe this fact undermines the court's findings, particularly given the distinct circumstances, including both the fact that Jane had tried to help appellant avoid conviction in the former case and the length of time appellant was in prison, completely separated from Jane for years.
With respect to the threat against Jane's sister on September 29, 2005, appellant argues that evidence of that threat was inadmissible under section 1109 not only because it occurred more than 10 years before the charged offenses, but also because section 1109 is concerned solely with domestic violence against a partner, cohabitant, child, or other close relative. (See § 1109, subd. (d)(3) ["Domestic violence" has meaning set forth in Fam. Code, § 6211 "if the act occurred no more than five years before the charged offense"]; see Fam. Code, § 6211, subd. (f) [" 'Domestic violence' is abuse perpetrated against," inter alia, any "person related by consanguinity or affinity within the second degree"].) We need not decide if evidence of the threat against Jane's sister was admissible under section 1109 because, as discussed in part I.B.2., post, the court properly admitted this evidence to prove intent under section 1101, subdivision (b).
Appellant next contends the court improperly found admissible two instances of prior domestic violence regarding which the charges were dismissed. The trial court permitted Jane to testify about the April 19, 2006 incident in which appellant attempted to pull her out of a friend's car while holding a belt in his hand. Jane testified that she did not know what the belt was for, "but [she] just [knew] it wasn't going to be nice." Jane was also permitted to testify about the July 6, 2006 incident in which appellant made threatening phone calls to her.
In his briefing, appellant also refers to a prior incident in which Jane "called police to have appellant removed from her apartment because he was not on the lease, and there was a no contact order in effect," during which he told Jane, " 'I'm going to get you for this.' " However, Jane did not testify about this incident at trial. It is therefore irrelevant that the court may have found it admissible.
First, we observe that appellant never specifically argued that these dismissed incidents were inadmissible under section 1109. During the hearing on the in limine motions, when the court stated that the dismissed counts were admissible, defense counsel said that he understood "what the law is" and that he "never claimed that the law was anything different than what you just said." Counsel then stated his belief that the fact of dismissal was "important in the court making its judgment under [section] 352."
Appellant speculates that the charges related to these incidents—for violating a protective order (Pen. Code, § 273.6, subd. (a))—were dismissed because they were weak cases, while respondent asserts that they were likely dismissed to avoid overcharging appellant. Regardless of the reason for dismissal, there is no rule that only prior conduct resulting in a conviction may be admitted under section 1109, and the court properly found these incidents were admissible to prove appellant's propensity to commit domestic violence. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1096 [even though defendant had not been convicted of prior domestic violence incident to which witness testified, "the evidence gave rise to a straightforward issue of credibility such that a jury quite reasonably could have found—by a preponderance of the evidence or beyond a reasonable doubt—that appellant committed prior 'domestic violence' as that term is used in section 1109"].) It was for the jury to determine whether appellant had committed these prior acts of domestic violence. (See Escobar, at p. 1096.)
We also observe that the trial court excluded evidence of prior charged offenses that resulted in acquittals.
Appellant also argues that evidence regarding the dismissed incidents should have been excluded because those incidents took place almost 10 years before the charged offenses. They were, however, within the 10-year period contemplated by section 1109, subdivision (e)(3), and, even if remote, were properly admitted in the interest of justice as already discussed. (Cf. Johnson, supra, 185 Cal.App.4th at p. 534 [remote prior conduct is theoretically less probative of propensity than more recent conduct, especially "if the defendant has led a substantially blameless life in the interim"].)
For the reasons discussed, the court did not abuse its discretion in making its admissibility determinations under section 1109. (See Mungia, supra, 44 Cal.4th at p. 1130.)
2. Section 1101 , Subdivision (b)
"Subdivision (a) of section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Hence, under subdivision (b) of section 1101, evidence that a person committed a prior uncharged offense is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).) The least degree of similarity between the prior conduct and the charged offense is required to prove intent. (Ewoldt, at p. 402; see also People v. Stitely (2005) 35 Cal.4th 514, 532 [to prove intent, "[t]he two acts need only be sufficiently similar to suggest that the defendant probably had the same intent each time"].)
Here, appellant argues that the prior offense evidence regarding the threat appellant made against Jane's sister was inadmissible under section 1101, subdivision (b) both because the threat did not involve Jane and because it was too remote. We disagree.
The court found that this evidence was admissible to demonstrate appellant's intent when he threatened Jane, which was "a necessary element of the offense" of making criminal threats. (See Pen. Code, § 422 [a threat made with "the specific intent that the statement . . . is to be taken as a threat"].) As noted, the least similarity between the prior conduct and the current charged offense is required to prove intent. (See People v. Ewoldt, supra, 7 Cal.4th at p. 402.) A threat against Jane's sister, which occurred while Jane was present and resulted in a conviction, plainly is similar enough to be admissible under section 1101, subdivision (b), to show appellant's intent in the present case when he spoke the words to Jane that were alleged to constitute threats. (See Ewoldt, at p. 402; see also Pen. Code, § 422; People v. Stitely, supra, 35 Cal.4th at p. 532.)
Because we have found the other challenged prior domestic violence evidence admissible under section 1109, we need not address appellant's argument that that evidence was inadmissible under section 1101, subdivision (b).
The court did not abuse its discretion when it found the threat to Jane's sister admissible to prove intent under section 1101, subdivision (b). (See Mungia, supra, 44 Cal.4th at p. 1130.)
3. Section 352
Before admitting evidence under either section 1109 or section 1101, subdivision (b), the trial court is required to determine, pursuant to section 352, whether the probative value of the evidence of prior conduct "is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) Evidence is more prejudicial than probative only when " 'it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
Having determined that the trial court properly found the challenged evidence relevant and admissible under sections 1109 or 1101, subdivision (b), we now must determine whether the court nevertheless abused its discretion in admitting the evidence pursuant to section 352. (See Johnson, supra, 185 Cal.App.4th at p. 531; Mungia, supra, 44 Cal.4th at p. 1130.)
Appellant's main complaint is that "the court failed to conduct the proper balancing test in making its ruling, in light of its apparent reliance on recitation of the generic balancing equation, without reference to any specific facts of this case." However, "as the Supreme Court has repeatedly . . . reaffirmed, 'when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.' [Citations.]" (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.) In this case, the court discussed the prior offense evidence and expressly found it more probative than prejudicial under section 352. That was sufficient.
Appellant also attempts to trivialize the seriousness and strength of the evidence in the present case when he argues that "[t]he prosecutor was able to take a weak case involving what largely consisted of crude ranting about making sex movies and vulgar name calling into a very serious felony prosecution." The prior domestic violence evidence, however, was no more inflammatory than the evidence presented concerning the charged offenses, which involved much more than "crude ranting." (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.) Indeed, the past conduct Jane described was very similar to the charged offenses. (See Johnson, supra, 185 Cal.App.4th at p. 531 [principal factor affecting probative value of uncharged act is its similarity to charged offense].) The prior domestic violence evidence was therefore extremely probative of what in fact took place in 2015, what appellant's intent was, and the effect of appellant's repeated conduct on Jane. (See Pen. Code, §§ 422, 646.9, subd. (a); see also Poplar, at p. 1139 [evidence of prior acts of domestic violence "was extremely probative, showing defendant's propensity for violence against domestic partners"].) For example, the evidence of appellant's past threats, against both Jane and her sister, was relevant to show that appellant's alleged threats against Jane in the present matter were in fact intended to be actual threats, which made Jane fearful, rather than " 'not a big deal' " and " 'talking shit only,' " as appellant told Jane in a letter from jail she must convince judge they were.
Appellant also complains about "the prosecutor's apparent cavalier solicitation of testimony regarding the number of times that appellant had hit [Jane], even though there [were] no complaints filed as to any of those incidents and they were not discussed as part of the admission of priors." Appellant did not object to any question related to this evidence. He has therefore forfeited the issue on appeal. (See People v. Seijas (2005) 36 Cal.4th 291, 301; § 353, subd. (a).)
Finally, the court gave limiting instructions, which ensured that the jury would not use the prior domestic violence evidence for an improper purpose. (See, e.g., People v. Rogers (2013) 57 Cal.4th 296, 332 [limiting instructions ensured that jury would not consider other crimes evidence, admitted under section 1101, subdivision (b), for any improper purpose].)
As discussed, the trial court reasonably concluded that the evidence in question was relevant and admissible under section 1109 or section 1101, subdivision (b). (See pts. I.B.1. & 2., ante.) The court also acted well within its discretion in finding that the strong probative value of this evidence outweighed any danger of undue prejudice to appellant. (See § 352; Jennings, supra, 81 Cal.App.4th at p. 1314; see also Mungia, supra, 44 Cal.4th at p. 1130.)
II. Failure to Instruct with CALCRIM No. 850
Appellant contends the court erred when it failed to instruct sua sponte with CALCRIM No. 850, which would have instructed the jury on the limited permissible use of expert testimony regarding intimate partner battering.
CALCRIM No. 850 provides: "You have heard testimony from [expert's name] regarding the effect of [intimate partner battering].
"[The expert's] testimony about [intimate partner battering] is not evidence that the defendant committed any of the crimes charged against [him].
"You may consider this evidence only in deciding whether or not [the alleged victim's] conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of [her] testimony." (CALCRIM No. 850, rev. Mar. 2017.)
The bench notes to the 2017 revision to CALCRIM No. 850 discuss a court's instructional duty: "Several courts of review have concluded there is no sua sponte duty to give a similar limiting instruction (see CALCRIM No. 1193, Testimony of Child Sexual Abuse Accommodation Syndrome) when an expert testifies on child sexual abuse accommodation syndrome. [Citations.]" The bench notes cite several cases, including, inter alia, People v. Mateo (2016) 243 Cal.App.4th 1063, 1073-1074 (Mateo), which held that the trial court was required to give CALCRIM No. 1193 only upon request, and People v. Humphrey (1996) 13 Cal.4th 1073, 1088, fn. 5, which states, "If the prosecution offers the battered women's syndrome evidence, an additional limiting instruction might also be appropriate on request . . . ." The bench notes also cite People v. Housley (1992) 6 Cal.App.4th 947, 958-959 (Housley), in which a panel of this Division concluded there is a sua sponte duty to give a CALCRIM No. 1193.
Appellant points out that the bench notes to the prior version of CALCRIM No. 850 provided, to the contrary, that the court had a sua sponte duty to give this instruction if an expert had testified on intimate partner battering and its effects, citing Housley. (Judicial Council of Cal., Crim. Jury Instns. (Oct. 2016 supp.) Bench Notes to CALCRIM No. 850, p. 556.)
Appellant argues that our Supreme Court's statement in Humphrey is mere dictum, while respondent argues that our holding in Housley was implicitly overruled in Humphrey. It is not necessary for us to decide whether the court was required to give CALCRIM No. 850 even absent a request because, in the circumstances of this case, we conclude it is not reasonably probable that the result would have been different had the court in fact given the limiting instruction. (See Mateo, supra, 243 Cal.App.4th at p. 1074 [even assuming court erred in failing to give limiting instruction on child sexual abuse accommodation syndrome, error was harmless under standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836]; Housley, supra, 6 Cal.App.4th at p. 959 [it was not reasonably probable defendant would have received a more favorable verdict if appropriate limiting instruction had been given].)
In Housley, we found harmless the court's failure to instruct the jury on the limited use of the expert's testimony given that the expert had "twice told the jury she had not met the victim and had no knowledge of the case. Her testimony was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim. In the face of this testimony, it is unlikely the jury interpreted her statements as support for [the victim's] credibility." (Housley, supra, 6 Cal.App.4th at p. 959; accord, Mateo, supra, 243 Cal.App.4th at p. 1074.)
Likewise, in this case, Gibbons told the jury she had never met either Jane or defendant and had not read any police reports relating to the case. She testified generally about the dynamics of domestic violence and common myths about intimate partner battering, as well as about the common behavior of victims as a class, which makes it "unlikely the jury interpreted her statements as support for [Jane's] credibility." (Housley, supra, 6 Cal.App.4th at p. 959; accord, Mateo, supra, 243 Cal.App.4th at p. 1074.) In addition, there was a great deal of compelling evidence regarding appellant's stalking and repeated threats in the form of recorded voicemails. The court also instructed with CALCRIM No. 332, which told the jury that it was not required to accept Gibbons' opinions "as true or correct," that "[t]he meaning and importance of any opinion" was for it to decide, and that it could "disregard any opinion that [it found] unbelievable, unreasonable, or unsupported by the evidence." (CALCRIM No. 332; see Mateo, at p. 1074.)
For these reasons, any instructional error was harmless. (See Mateo, supra, 243 Cal.App.4th at p. 1074; Housley, supra, 6 Cal.App.4th at p. 959.)
III. Expert Testimony
Appellant contends the court erred when it permitted Sergeant Gibbons to testify as an expert witness because (1) she improperly relied on numerous hearsay accounts of domestic abuse as a basis for her opinions, and (2) she was unqualified to testify as an expert.
A. Trial Court Background
The prosecutor moved in limine to permit Gibbons to testify regarding "the effects of intimate partner battering." Appellant moved to not permit Gibbons to opine on anything she had read in a police report and for a limiting instruction that would inform the jury that it could not consider any hearsay evidence contained in police reports that were relied on by Gibbons as proof of any fact.
At the hearing on the motions, the prosecutor confirmed that Gibbons would testify generally about intimate partner battering, with no reference to the facts of this case. Defense counsel stated that the concerns raised in his motion were satisfied by the planned general nature of the testimony. The court then granted the prosecutor's motion to permit Gibbons to testify, "with the caveat that [defense counsel] can cross-examine her ability to be an expert or her qualifications once she is offered as a witness."
During trial, at the conclusion of the voir dire of Gibbons, defense counsel objected to her qualifications as an expert in the area of domestic violence. The court overruled the objection and designated her as an expert. Subsequently, outside of the presence of the jury, defense counsel elaborated on his objection: "I don't believe that with her particular knowledge, skills, experience, training, and education that there is enough to assist the trier of fact in this matter." Counsel also argued that Gibbons was biased as a police officer. After additional argument by both the prosecutor and counsel, the court said it understood the basis of counsel's objection, but noted that Gibbons had "been qualified five times previously as an expert in this field. She is not going to testify directly about any opinions in this case. And the jury can determine after cross-exam[ination] what weight, if any, to give to her opinion."
The court subsequently instructed the jury with CALCRIM No. 332, regarding its consideration of expert witness testimony.
B. Legal Analysis
1. Gibbons' Reliance on Hearsay Accounts of Domestic Abuse
After appellant's trial had concluded, our Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), in which it clarified the law on the proper scope of expert testimony, as follows: "When an expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted; see Crawford v. Washington (2004) 541 U.S. 36, 68.) The Sanchez court defined testimonial hearsay as "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, at p. 694.)
The court in Sanchez disapproved its prior decision in People v. Gardeley (1996) 14 Cal.4th 605 "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.)
The Sanchez court further rejected attempts to avoid the hearsay and confrontation problems inherent in such testimony "by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, rendering them hearsay." (Sanchez, supra, 63 Cal.4th at p. 684.)
The court made clear that its decision "does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) The court further noted that an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so" and also may assume the truth of another witness's properly admitted testimony "in a properly worded hypothetical question in the traditional matter." (Id. at pp. 684, 685.)
The court defined "case-specific facts" as those facts "relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
In the present case, appellant argues that the basis for Gibbons' "expertise is comprised primarily of hearsay statements, and as such her opinions and various stories about domestic abuse should have been excluded as hearsay." Appellant is mistaken.
We reject respondent's claim that appellant forfeited this issue because he did not specifically object at trial on the ground now raised on appeal. At the time of appellant's trial, Sanchez had not yet been decided and, under Gardeley, courts generally permitted expert testimony on case-specific hearsay on the ground that it was not admitted for its truth. (See Sanchez, supra, 63 Cal.4th at p. 683, citing People v. Gardeley, supra, 14 Cal.4th at pp. 619-620.) We therefore find that any such additional objections by defense counsel would have been futile.
Sanchez concerned expert testimony about case-specific hearsay, not an expert's general opinions based, as respondent puts it, on "what [she] learned from talking to people over the course of [her] career." Indeed, the Sanchez court explained that, "[i]n addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality. A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand. An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others." (Sanchez, supra, 63 Cal.4th at p. 675.)
This description of appropriate expert testimony applies to the present case, in which Gibbons testified generally about the dynamics of and myths about domestic violence, and offered her opinions—based exclusively on her training and experience—about why domestic violence victims often behave in certain, sometimes unexpected, ways. Thus, her testimony was necessarily based in part on information related to her by others, which, as Sanchez points out, is completely permissible. (See Sanchez, supra, 63 Cal.4th at p. 685 [an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].) She did not, however, relate any case-specific hearsay statements or, for that matter, any hearsay statements at all. (See id. at p. 675.)
Appellant's claim that Gibbons' expert testimony violated the rule set forth in Sanchez is without merit.
2. Gibbons' Qualifications to Testify as an Expert
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (§ 720, subd. (a).) " 'We are required to uphold the trial judge's ruling on the question of an expert's qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where " 'the evidence shows that a witness clearly lacks qualification as an expert.' " [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
Initially, on direct examination, Gibbons testified that she was a sergeant with the San Mateo County Sheriff's Office and had been a California peace officer for over 27 years. Before that, she was a correctional officer and a dispatcher with the Redwood City Police Department. For the past 13 years, she had been a supervisor in the detective bureau overseeing South County investigations. She supervised nine detectives who investigated crimes that included domestic violence.
Gibbons participated in updated trainings related to domestic violence every two years. She had also attended at least four or five specialty courses concerning domestic violence and had taught and given presentations about domestic violence to community groups, victim advocacy groups, law enforcement officers, and dispatchers. In 2008, Gibbons was the recipient of an award that is given annually to a San Mateo County law enforcement officer by the Domestic Violence Council. She had previously testified as an expert in domestic violence in five court cases. Gibbons estimated that in her experience as a dispatcher, patrol deputy, and detective, she had spoken to some 1,000 domestic violence victims. She had personally played a role in 500 to 750 domestic violence investigations and continued to have contact with victims as cases made their way through the court system. As a supervisor, she also guided officers and detectives in how best to conduct domestic violence investigations.
During voir dire examination, Gibbons testified that she did not have a college degree, although she had an advanced certificate from the Commission on Peace Officers Standard and Training, which was an advanced police officer degree. She had not written any magazine articles or books on domestic violence, but had "been deeply involved in the authoring and revision of the domestic violence protocol for law enforcement in San Mateo County." One of the domestic violence related courses she took was a weeklong class about how to be an instructor on the topic of domestic violence.
Given this evidence of Gibbons' training and extensive experience related to domestic violence, including numerous classes, contacts with victims, teaching both law enforcement officers and members of community organizations about domestic violence, supervising detectives in domestic violence cases, and testifying in five cases as an expert in domestic violence, the court did not abuse its broad discretion when it found that she was qualified to testify as an expert in the area of domestic violence. (People v. Wallace, supra, 44 Cal.4th at pp. 1062-1063.)
We do not agree with appellant's assertion that the court found Gibbons qualified to testify as an expert on domestic violence solely because she had testified as an expert in five cases, and find unpersuasive his argument that the court thereby failed to properly exercise its discretion regarding her qualifications to testify as an expert witness.
In addition, the court gave CALCRIM No. 332, which told the jury, inter alia, to "consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion," and to "decide whether information on which the expert relied was true and accurate." Thus, the weight to which Gibbons' testimony was entitled, based on consideration of various factors that included her training, education, and experience, was ultimately a matter for the jury to determine. (See CALCRIM No. 332; Sanchez, supra, 63 Cal.4th at p. 675 [jury is free to reject expert's opinions "as unsound, based on faulty reasoning or analysis, or based on information the jury finds unreliable," or because jury "finds the expert lacks credibility as a witness"].)
IV. Failure to Appoint New Counsel Post-Trial
Appellant contends the court erred when it failed to appoint new counsel to investigate his ineffective assistance of counsel claims regarding matters occurring outside of trial and determine whether to file a new trial motion.
A. Trial Court Background
After appellant's jury trial had concluded, but before sentencing, the court held a Marsden hearing based on appellant's request that the court appoint another attorney to represent him. When the court asked appellant to explain why he felt that counsel had not properly represented him, appellant gave some 12 examples of the ways in which he believed counsel had been inadequate, which primarily concerned counsel's failure to interview certain witnesses, obtain particular evidence, or permit appellant to testify. Counsel responded to the allegations, first stating, "I disagree with virtually everything that [appellant] said. And he's fabricating information here." Counsel said he had told appellant that he could raise these claims on appeal and that "he should discuss them with the appellate attorney . . . who can investigate his claims." Counsel also responded specifically to appellant's various claims. The court then gave appellant the opportunity to respond to counsel's comments.
People v. Marsden (1970) 2 Cal.3d 118. --------
Finally, when the court asked appellant if he had anything to add, appellant said, "We can go in circles. I don't want him to represent me. I'm not comfortable with him in the future what I have to do next, the sentencing. [¶] If he didn't do his best during the jury proceeding, he is not going to do his best with the things coming up. These are points that are relevant to me. The jury didn't have all the evidence." Counsel again stated that appellant would have the opportunity to appeal and could ask appellate counsel to raise allegations of ineffective assistance of counsel.
The court ruled as follows: "To the extent there are conflicts in the statements this morning, I believe [defense counsel], who is an extremely capable and experienced criminal defense attorney. In fact, [appellant], you were lucky to have him assigned to you in this court's opinion.
"What it appears to the court is that there was a disagreement with regard to tactics and strategy. And hindsight, [appellant], as they say, is generally 20/20.
"Now, I believe [defense counsel], because of his integrity and reputation, when he . . . talked about whether or not you were going to testify . . . . And I believe [defense counsel] when he said he would not impede that right if you had indeed made that request.
"I find that [defense counsel] has properly represented you and will continue to do so. The Marsden motion is denied. . . ."
B. Legal Analysis
Appellant contends the court "should have appointed substitute counsel for the purpose of reviewing the extensive evidence cited by appellant [at the Marsden hearing] to ascertain whether a new trial motion based on ineffective assistance of counsel was warranted."
Appellant relies on People v. Stewart (1985) 171 Cal.App.3d 388, 395-397 (Stewart ), disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 693-694, in which a panel of this Division explained: " 'A trial judge is unable to intelligently deal with a defendant's request for [a new trial on the basis of trial counsel's incompetence or for] substitution of attorneys unless he is cognizant of the grounds which prompted the request.' (People v. Marsden, supra, 2 Cal.3d at p. 123.) A denial of [a defendant's] motion for new trial based on ineffective representation without careful inquiry into the defendant's reasons for claiming incompetence ' "is lacking in all the attributes of a judicial determination." [Citations.]' [Citation.]" (Stewart, at p. 398.) Instead, following a careful inquiry, if "the defendant has made a colorable claim that he was denied his constitutional right to the effective assistance of counsel," that is, "if he credibly establishes the possibility that his trial counsel failed to perform with reasonable competence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings," the court is required to appoint substitute counsel to investigate the defendant's claim. (Id. at p. 397.)
This case, unlike Stewart, does not involve the denial of a motion for new trial. Although appellant requested substitution of attorneys, he not only failed to inform the court that he wanted new counsel to assist him in moving for a new trial, he specifically stated that the reason he was asking the court to appoint a new attorney was because "I'm not comfortable with him in the future what I have to do next, the sentencing." When defense counsel noted several times that appellant would have the opportunity to challenge the adequacy of his representation on appeal, appellant never clarified that he wanted to challenge counsel's representation in the trial court by way of a new trial motion. Rather, he expressed concern, based on counsel's alleged past shortcomings, about counsel's ability to represent him in "the things coming up," i.e., the sentencing hearing. (Cf. People v. Braxton (2004) 34 Cal.4th 798, 814 ["If the trial court's failure to hear or rule on the new trial motion appears to be inadvertent, the defendant must make some appropriate effort to obtain the hearing or ruling"].)
Because appellant never informed the court that he wanted to obtain substitute counsel for anything other than representing him at sentencing, he has not preserved the issue raised on appeal: whether the court violated the rule articulated in Stewart by failing to fully inquire into the reasons appellant needed substitute counsel to bring a new trial motion on his behalf. (Compare Stewart, supra, 171 Cal.App.3d at p. 398 ["denial of appellant's motion for new trial based on ineffective representation without careful inquiry into the defendant's reasons for claiming incompetence ' "is lacking in all attributes of a judicial determination" ' "].)
Moreover, even had appellant made clear that he wished substitute counsel to investigate whether to file a motion for new trial, the record reflects that the court did carefully inquire into appellant's reasons for claiming incompetence. (See Stewart, supra, 171 Cal.App.3d at p. 398.) The court listened first to appellant's detailed explanation of the reasons for his dissatisfaction with counsel, then to counsel's responses, as well as to appellant's additional arguments, before finding that appellant's claims lacked credibility and denying his Marsden motion. (Compare Stewart, at p. 398.) Because the court reasonably concluded that appellant had not "made a colorable claim that he was denied his constitutional right to the effective assistance of counsel," it was not required to appoint substitute counsel to investigate his claims and file a new trial motion on his behalf. (Id. at p. 397.)
V. Remand for Resentencing
Appellant contends remand is required for resentencing due to sentencing error. Respondent agrees.
Appellant was convicted of two felonies: criminal threats (Pen. Code, § 422, subd. (a)) and stalking (Pen. Code, § 646.9, subd. (a)). At sentencing, the court selected the stalking count as the principal term, imposed the upper term of five years, and doubled that term due to appellant's prior strike. The court then imposed three consecutive five-year enhancements for prior serious felonies (Pen. Code, § 667, subd. (a)(1)) and an additional two years for two prior prison terms (Pen. Code, § 667.5, subd. (b). The court stayed imposition of sentence on the criminal threats count pursuant to Penal Code section 654.
Penal Code section 667, subdivision (a) provides: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." Under subdivision (a)(4) of Penal Code section 667, " 'serious felony' means a serious felony listed in subdivision (c) of [Penal Code section] 1192.7."
Stalking is not listed as a serious felony in Penal Code section 1192.7, subdivision (c). The offense of criminal threats is, however, listed in that subdivision as a serious felony. (Pen. Code, § 1192.7, subd. (c)(38).) In this case, the court incorrectly added the three five-year enhancements to the stalking count pursuant to subdivision (a) of Penal Code section 667, even though stalking is not a serious felony, because it believed that count had the longest potential term and therefore had to be the term imposed, pursuant to Penal Code section 654.
Under Penal Code section 654, subdivision (a), "[a]n 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." (Italics added.) The trial court is required to include enhancements in its determination of which provision provides for the longest prison term. (People v. Kramer (2002) 29 Cal.4th 720, 723.)
Here, although the three-year upper term on the criminal threats count is lower than the five-year upper term on the stalking count, once the three-year criminal threats term is doubled due to appellant's prior strike and the three five-year enhancements are added, it becomes the longest potential term of imprisonment under section 654. Hence, the court should have imposed sentence on that count instead and stayed imposition of sentence on the stalking count, rather than the other way round. (See § 654, subd. (a); People v. Kramer, supra, 29 Cal.4th at p. 723.) The matter must be remanded for resentencing to correct this error.
DISPOSITION
The matter is remanded for resentencing as set forth herein. The judgment is otherwise affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.