Opinion
A150886
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SANCHEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR282738)
Michael Sanchez was convicted of inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a); count one) and resisting arrest (§ 148, subd. (a)(1); count two). Sanchez contends his conviction for resisting arrest is unsupported by substantial evidence and the trial court erroneously denied both his motion to suppress and his motion for a new trial on the ground of ineffective assistance of counsel. We find no error and affirm.
Undesignated statutory references are to the Penal Code.
Sanchez also filed a petition for writ of habeas corpus (No. A152414). We deferred the question of whether to issue an order to show cause pending this appeal. By separate order, we deny the habeas petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sanchez pleaded "not guilty" to the charges, a preliminary hearing was held, and Sanchez was held to answer on both counts. At the time, Sanchez was represented by privately retained counsel, Daniel Russo. Thereafter, Sanchez was represented by a deputy public defender, who filed a motion to suppress (§ 1538.5) Fairfield Police Department Officer Michael Pena's observations inside Sanchez's home, arguing Pena unlawfully entered his home without an arrest warrant. After hearing the evidence and argument, the trial court denied the suppression motion.
The initial jury trial began in September 2015, and Sanchez continued to be represented by a deputy public defender. On September 14, 2015, the jury convicted Sanchez of count two (a misdemeanor), and announced it was unable to reach a verdict on the infliction of corporal injury charge (count one). A mistrial was declared and retrial on the latter charge began in September 2016. At the second trial, Russo again represented Sanchez.
Prosecution Case
C.K. testified that, in February 2011, she and Sanchez were dating and had an infant son. Sanchez, C.K., their son, and Sanchez's disabled brother lived together in Sanchez's Fairfield home. On the evening of February 6, 2011, C.K., her son, and Arianna Silvas, whom Sanchez had introduced to C.K., went shopping and returned to Sanchez's house around 11:00 p.m. Sanchez, Sanchez's brother, Sanchez's friend Matt Adams, and Adams's girlfriend were also at the home when C.K. returned. Sanchez appeared intoxicated.
After Adams and his girlfriend left, C.K. sat on the couch with her son while Sanchez and Silvas drank tequila shots in the kitchen about 30 feet away. C.K. heard Sanchez tell Silvas about how he and C.K. were not going to last as a couple. C.K. was upset. She asked Sanchez to stop drinking and reminded him he needed to get up early for work the next day. Sanchez told C.K. to "shut the fuck up," approached her with a beer bottle in his hand and threatened to hit C.K. with it. C.K. put her son down, and Sanchez punched C.K. in the head with his right hand. C.K. felt a "loud ring" and fell off the couch. She called 911 and screamed her address. Sanchez said that since the police had been called, he "might as well go out with a bang."
C.K. was scared, begged Sanchez to stop, denied having called the police, and returned to the couch. Sanchez grabbed her by her hair and dragged her to his brother's downstairs bedroom. He also punched C.K. in the back of the head. She asked him to stop, and Sanchez called her a "stupid bitch." When they reached the bedroom, C.K. escaped and ran outside.
C.K. ran to a house two doors down, where she believed a police officer lived. She banged on the door, but no one responded. Sanchez arrived, hit her again, and then dragged her by her hair back to the lawn of his house. At this point, Sanchez retreated to the house. C.K. used her cell phone to call her mother and grandmother and left voice mail messages, one of which was played for the jury.
Silvas came outside, and she and C.K. sat in Silvas's car. Silvas returned to the house when C.K. asked her to retrieve her son. The police arrived by the time Silvas returned with the infant. C.K. told one of the responding officers, Pena, what happened. She also told Pena she did not want Sanchez arrested because Sanchez was the financial provider and she was "scared . . . he was going to come after [her]." C.K. also told Pena she had "nothing" and nowhere to go and that no one else was present during the incident. She suffered injuries including bruises and scrapes to her temple, neck, arm, foot and ankle, and her hair came out as a result of Sanchez pulling it. Photographs of C.K.'s injuries and hair were admitted as evidence.
The neighbor from two doors down, Robert Byrne, testified that a young woman pounded on his door and yelled for help around midnight on February 6, 2011. He initially observed the woman from his bedroom window and then through the front door's peephole. Byrne saw blood on her face and called 911. He then observed a car drive down the street. The woman went straight from Byrne's porch and entered the car. He did not observe anyone else at his front door or hear a loud male voice, but he did not go outside to look. Byrne also told the dispatcher he did not see anyone else. However, he lost sight of the woman when he moved between the bedroom window and front door.
Pena arrived at Sanchez's house, in full uniform, a little after midnight. The front door was open, and C.K. and her son were standing outside near the house. She appeared "[d]istraught, crying, [and] very emotional." Pena observed a laceration on C.K.'s left temple near her eyebrow, a bump on her forehead, lacerations on her shins and ankles, and redness on her face and arms. C.K. ran her hands through her hair, and hair came out in clumps from her scalp. C.K. told Pena that Sanchez was drunk inside the house, threatened to hit her with a beer bottle, and inflicted her injuries by striking her in the face with his hand and dragging her by her hair. Pena did not smell alcohol on C.K. or observe any other signs she was intoxicated. After seeing her injuries, Pena believed he had probable cause to arrest Sanchez. However, Pena wanted to speak with Sanchez to get his side of the story. When Pena asked C.K. if she wanted Sanchez arrested, C.K. "did not provide a yes or no answer" to his question. She said, "[Sanchez] makes all the money."
Pena approached the house, with approximately four other uniformed officers. The door was shut after police arrived. Pena rang the doorbell, knocked several times, and announced "Fairfield Police," but he did not receive a response. Pena opened the unlocked door. He saw Sanchez standing at the end of a hallway about 10 to 15 feet away. Sanchez's fists were clenched, he was yelling at the officers, and he began moving quickly towards them. Pena observed what appeared to be blood on the chest of Sanchez's shirt, but Pena did not observe Sanchez to have any injuries. Sanchez yelled at the officers, "I didn't do anything" and "get out." Pena told Sanchez to stop, turn around, and put his hands behind his back. Sanchez stopped moving forward but continued to yell, "get the fuck out of my house, I didn't do anything." Pena repeated the same commands four or five times, but other than stopping his forward movement Sanchez did not comply. Because Sanchez continued to behave aggressively, Pena drew his Taser. He repeated his command for Sanchez to turn around and put his hands behind his back. Pena also warned Sanchez that the Taser would be deployed if he did not comply with the order. Sanchez did not comply and remained standing, in a "bladed" stance, with his fists clenched about five or six feet away. Pena ordered Sanchez to get down on the ground, but, instead of doing so, Sanchez took another step forward. At this point, Pena and another officer deployed their Tasers. Sanchez fell to the ground, rolled over, and Pena placed his arms in handcuffs.
While inside the house, Pena noticed the odor of alcohol on Sanchez's breath, Sanchez's voice was loud, and his words were slurred. Pena asked Sanchez about C.K.'s injuries. Sanchez initially denied that C.K. was injured and denied hitting, dragging, or otherwise striking her. He later told Pena that C.K. must have injured herself. Pena did not observe any injuries to Sanchez other than those consistent with use of a Taser.
Defense Case
Sanchez testified that, in February 2011, he lived with his daughters, his infant son, his brother, and Adams. C.K. had moved into Sanchez's house one month before their son was born, but they had later separated and only recently reconciled. C.K. slept at Sanchez's, her mother's, or her grandmother's house. On the night of February 6, 2011, Sanchez drank two shots of tequila while C.K., his son, and Silvas were out shopping. When they returned home, around 9:00 p.m., C.K. put their son to sleep, in the upstairs master bedroom, and began drinking. Adams and Adams's girlfriend were also at the house that evening.
Over the course of an hour and half, C.K. had several alcoholic drinks and became intoxicated. Her face was red, and she slurred her words. C.K. and Sanchez began to argue when she overheard Sanchez telling Silvas that things were not working out between the two of them. At that time, C.K. was sitting on the couch and Silvas went to sit on the couch with her. Silvas got up and told Sanchez that C.K. had just called the police. At that point, Adams and his girlfriend left. Sanchez left the kitchen and went to the couch and asked C.K. why she had called the police. C.K. said she was leaving with their son. She went to the stairs, but Sanchez blocked her path. C.K. pushed, kicked, punched, and slapped Sanchez in an attempt to get by. Sanchez picked her up from behind, walked her outside, and closed the door. When he moved C.K. out of the house, "she threw her head back and busted [his] chin." This caused a large cut that left a scar. C.K. also inflicted scratches on Sanchez's neck and ankles. Sanchez denied punching or kicking C.K. or dragging her by her hair.
Silvas persuaded Sanchez to let her take the baby outside and drive C.K. and their son to C.K.'s grandmother's house. While Silvas was walking outside with the infant, Sanchez saw the police arrive. Silvas said she would talk to the police. Sanchez then moved his disabled brother from the couch to his bedroom, closed his front door, and sat on the interior stairs. He heard a knock on the door. The door opened as he came toward it. Police officers shined flashlights in his face and told him to come outside. The officers did not tell him to put his hands behind his back or that they would use Tasers. Sanchez said he put his hands up and walked toward the officers. Before he reached the door, about four feet from the officers, they "tased" him. Sanchez denied yelling or swearing at the police or taking a fighting stance. After his arrest, Silvas paid Sanchez's bail.
Although C.K. injured Sanchez's chin so badly that he believed the bone was chipped, he did not tell the police about it because he wanted the situation to end quickly so he could go to work. Sanchez also testified he did not tell the police about his injuries because he did not notice them until the next day.
Sanchez also testified his chin had a lump but was not bleeding, then later stated his chin was bleeding.
On defense counsel's motion, the trial court found Silvas was unavailable, and her testimony from the first trial was read to the jury. Silvas described herself as C.K.'s friend. She had been at Sanchez's house along with Sanchez's son, C.K., Sanchez's brother, and Sanchez's roommate, Matt Adams. Only C.K. was drinking; Silvas did not observe Sanchez consume any alcohol.
Silvas could not tell if C.K. was intoxicated, but she seemed "frustrated" and "bitter." Sanchez was in the kitchen and C.K. on the couch when they began arguing. Sanchez did not throw a beer bottle or threaten to throw one. Silvas did not see Sanchez pull C.K.'s hair or punch or strike C.K. in the head or face. Silvas was already outside when C.K. went outside, and Silvas did not see Sanchez drag C.K. by the hair. At some point C.K. entered Silvas's car. C.K. was crying and Silvas went back to the house to get C.K.'s son. When the police arrived, C.K. exited Silvas's car. In photographs admitted into evidence, C.K. had marks on her forehead, face, foot, arm and leg, but Silvas did not observe these injuries on the night of the incident. Silvas observed officers knock on Sanchez's door. Sanchez opened the door and complied with orders to hold his hands up. Nonetheless, the police "tased" Sanchez within a minute of entering the house. Silvas heard C.K. later admit she had not told the police the truth.
Verdict and Sentencing
At the conclusion of the second trial, the jury convicted Sanchez of count one. Newly retained counsel, Leslie Prince, substituted for Russo and filed a motion for new trial, raising ineffective assistance of counsel. The prosecution filed an opposition. The trial court took testimony from Sanchez and Russo, heard argument on the motion, and denied it. Sanchez was sentenced to the middle term of three years on the infliction of corporal injury count and a consecutive jail term of 164 days on the misdemeanor conviction with credit for 164 days already served. Sanchez filed a timely notice of appeal.
II. DISCUSSION
Sanchez concedes Pena had probable cause to arrest him, but he maintains the trial court erroneously denied his motion to suppress Pena's observations within the house because the officers acted unreasonably in entering his home to arrest him without a warrant. He also insists substantial evidence does not support his misdemeanor conviction for resisting arrest. Finally, Sanchez contends his trial counsel at the second trial was ineffective in numerous respects, and the trial court erroneously denied his motion for new trial. We disagree and affirm. A. Motion to Suppress
The Fourth Amendment to the federal Constitution and article I, section 13 of the California Constitution apply to arrests within the home, and it is settled that warrantless arrests conducted in the home are unlawful in the absence of consent or exigent circumstances. (Kentucky v. King (2011) 563 U.S. 452, 459-460; Payton v. New York (1980) 445 U.S. 573, 576, 585-586; People v. Ramey (1976) 16 Cal.3d 263, 274-276.) "In this context, 'exigent circumstances' mean an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (Ramey, at p. 276.)
Although the record is not crystal clear regarding whether Pena or the other officer crossed the threshold into Sanchez's home, the distinction is immaterial. The curtilage—"the area 'immediately surrounding and associated with the home' "—is considered " 'part of the home itself for Fourth Amendment purposes.' " (Florida v. Jardines (2013) 569 U.S. 1, 6-7.)
When a defendant files a motion to suppress pursuant to section 1538.5, the People have "the burden of proving that the warrantless search or seizure was reasonable." (People v. Williams (1999) 20 Cal.4th 119, 130.) " ' "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." [Citation.] On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365, italics omitted.)
1. Background
Sanchez's suppression motion sought suppression of primarily Pena's observations within the home, as well as Sanchez's statements to police. The People's opposition conceded the entry and arrest were made without a warrant and argued (1) exigent circumstances allowed Pena to enter the home without a warrant, and (2) the exclusionary rule does not immunize violations of section 148, subdivision (a), even if preceded by a Fourth Amendment violation.
At the hearing on the motion, Pena gave testimony that was generally consistent with his testimony at trial. In particular, he testified C.K. told him Sanchez was intoxicated, had hit and kicked her, and thrown a bottle on the floor. C.K. also told Pena that, when she had fled to a neighbor's house, Sanchez chased her, forced her to the ground, and dragged her, by her hair, back towards his house. Pena observed her injuries and saw she was bleeding. C.K. told Pena she lived at Sanchez's house and that Sanchez was inside, as was Sanchez's brother. Another officer advised Pena that, while Pena was interviewing C.K., Sanchez closed the front door of the house. Pena testified he approached and entered the home because "[he] believed a violent crime had occurred. I had specific knowledge that the suspect was inside of the residence. I wished to effect an arrest. I also believed there was exigent circumstances to enter the residence to insure safety of all parties. [C.K.] had described another occupant inside the residence. . . . [¶] . . . [¶] She said the suspect was heavily intoxicated and committed a violent act. In addition, I believed the evidence to the crime was inside of the residence." On cross-examination, Pena testified C.K. indicated she would stay elsewhere that night and did not suggest Sanchez threatened or attacked his brother. After entering the home and detaining Sanchez, Pena and other officers conducted a protective sweep and found Sanchez's brother in a bedroom, but they did not locate any tangible evidence.
In denying the suppression motion, the trial court concluded "there were exigent circumstances here."
2. Analysis
"[T]o fall within the exigent circumstances exception to the warrant requirement, an arrest or detention within a home . . . must be supported by both probable cause and the existence of exigent circumstances." (People v. Lujano (2014) 229 Cal.App.4th 175, 183, second italics added.) Sanchez concedes Pena had probable cause to believe Sanchez was inside the house and that Sanchez had committed a violent felony against C.K. The question is whether substantial evidence supports the trial court's exigency finding.
In People v. Wilkins (1993) 14 Cal.App.4th 761 (Wilkins), officers were dispatched to the scene of a reported domestic disturbance. On arriving, shortly after midnight, the police found the victim outside the house. She was crying, her face and nose were red, and she told the officers her husband, who remained inside the house, had hit her in the face. (Id. at pp. 767, 772.) In concluding the trial court properly denied the suppression motion, the reviewing court found the warrantless entry supported by both exigent circumstances and consent. (Id. at pp. 772-776.) With respect to exigent circumstances, Wilkins explained: "The victim was outside the house and obviously in need of shelter. It was reasonable for the officers to conclude her reentry into the home or even her continuing presence on the premises outside the home would spark further violence by defendant. [¶] The officers could not abandon the matter and expose the victim to further harm simply because defendant refused them admittance. Furthermore, under these circumstances, the officers were not constrained to delay until an arrest warrant could be obtained. Given the time of night, the securing of a warrant would necessarily have occasioned some delay and during this period the victim would have been vulnerable to further risk of physical harm. The risk of imminent violence resulting in further physical harm to the victim was an exigent circumstance requiring immediate action." (Id. at p. 772.)
Sanchez attempts to distinguish Wilkins on two grounds: (1) neither C.K. nor Sanchez consented to the officers entering the home; and (2) there was no ongoing danger because C.K. was outside and told Pena she planned to go to her grandmother's house. The consent distinction is a red herring because either exception to the warrant requirement would stand alone. (Wilkins, supra, 14 Cal.App.4th at p. 776.)
With respect to the ongoing danger, Sanchez is correct that at the time the officers entered Sanchez's home to arrest him, C.K. and the infant were outside the home and Sanchez was inside. Sanchez's brother remained inside the house, but Sanchez is also correct no evidence suggested Sanchez presented a danger to his brother. However, when officers arrived and then entered Sanchez's home, C.K. remained at the premises; she had not departed for her grandmother's house. There was some basis for a reasonable officer to doubt C.K. would in fact leave before being placed in harm's way, as she had told Pena both that she was wholly dependent on Sanchez and that Sanchez attacked her a second time after she fled to a neighbor's house. Furthermore, it was after midnight. Thus, as in Wilkins, supra, 14 Cal.App.4th at page 780, it was not unreasonable for Pena to believe Sanchez presented an ongoing threat and obtaining a warrant would have subjected C.K. to further risk of physical harm. The evidence of Pena's later interactions with Sanchez corroborate the assessment that the danger to C.K.'s safety had not passed.
This is not a case, like People v. Ormonde (2006) 143 Cal.App.4th 282, where police entered an apartment when the victim was "safely away from the premises," the victim's husband, who was suspected of domestic violence, was located and arrested outside the apartment, and "[n]one of the police officers . . . articulated any reason to believe that other victims or suspects were involved in the battery, or inside the apartment." (Id. at p. 291.)
Sanchez also contends we may not consider C.K.'s safety in our analysis because Pena did not explicitly state that protecting her was the reason he entered the house to arrest Sanchez. We do not read Pena's testimony so narrowly. Pena stated he entered the residence, in part, "to insure safety of all parties." In any event, "[a]n action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant." (Brigham City v. Stuart (2006) 547 U.S. 398, 404, italics omitted.)
In People v. Frye (1998) 18 Cal.4th 894 (Frye), disapproved on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, officers responded, in the early morning hours and without a warrant, to a report of domestic violence. After knocking on the defendant's apartment door, they saw the victim with a bruised and swollen face. They also observed what appeared to be blood on the outside of the door. When the officers asked the victim who injured her, she stepped outside, and pointed inside to the defendant. (Frye, at p. 989.) The Frye court held that in light of the facts then known to the officers, "they could reasonably have concluded that immediate action was necessary." (Ibid.) The officers' warrantless entry was objectively reasonable because even if some officers left the scene to obtain a warrant, the delay could have posed a safety risk to the victim and the remaining officers. (Id. at pp. 989-990.)
Our Supreme Court, in Frye, did not deem it determinative of exigency that the victim had left the apartment. Sanchez does not persuade us Frye and Wilkins are distinguishable. The facts known to Pena and the inferences reasonably drawn therefrom support a finding of exigent circumstances. Accordingly, we need not consider the parties' additional arguments.
In any event, even if we assume for the sake of argument the officers' entry into Sanchez's home was unlawful, the trial court nevertheless would not have been justified in suppressing Pena's testimony regarding Sanchez's conduct toward the arresting officers. Unlike tangible evidence that is uncovered when police conduct an unlawful search, a defendant's reaction to being detained is not inevitable, but constitutes an intervening circumstance that cures the taint. (People v. Cox (2008) 168 Cal.App.4th 702, 711-712; accord, In re Richard G. (2009) 173 Cal.App.4th 1252, 1262 ["individual's decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the 'taint' of a theoretically illegal detention"].) In this case, if there had been a Fourth Amendment violation, the jury could not convict Sanchez of the resisting arrest charge because the People have the burden of proving a police officer was lawfully performing or attempting to perform his duties when defendant was arrested. (See CALCRIM Nos. 2652, 2655, 2656.) However, Pena's observations of Sanchez's conduct resulted from Sanchez's independent, intervening decision to resist arrest. The trial court properly denied Sanchez's motion to suppress. B. Substantial Evidence to Support Resisting Arrest Conviction
In a related argument, Sanchez contends his conviction for misdemeanor resisting arrest (§ 148) is unsupported by substantial evidence. " 'The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.' " (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) Sanchez challenges only the evidence to support the second element.
When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "By definition, 'substantial evidence' requires evidence and not mere speculation." (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted; accord, In re Roderick P. (1972) 7 Cal.3d 801, 809.) Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) " 'Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.' (Evid. Code, § 411.) 'If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions.' " (In re Andrew I. (1991) 230 Cal.App.3d 572, 578.)
A "[d]efendant cannot be convicted of an offense against an officer engaged in the performance of official duties unless the officer was acting lawfully at the time." (People v. Simons (1996) 42 Cal.App.4th 1100, 1109.) The offense "require[s] as an element that the officer at the time of the offense be engaged in the lawful performance of his duties. This means, where the offense is committed upon an officer effecting an arrest the arrest must have been lawful." (Wilkins, supra, 14 Cal.App.4th at p. 776, fn. omitted.) The lawfulness of an arresting officer's actions is a jury question to be decided based on the evidence presented at trial. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
Sanchez contends there was no substantial evidence the officers were lawfully performing their duties because they lacked a warrant. But, as we have already rejected his suppression argument and Pena's testimony at the first trial was consistent with his testimony at the suppression hearing, we need not readdress this point. Sanchez's sufficiency of the evidence argument fails for the same reasons stated ante. Simply put, substantial evidence supports the jury's implicit finding of exigent circumstances.
In the alternative, Sanchez maintains the officers did not act lawfully because they used excessive force in making his arrest. He contends, "nothing [he] did excused Pena's . . . tasing." An otherwise lawful arrest made with excessive force is outside the lawful performance of an officer's duties. (People v. Olguin (1981) 119 Cal.App.3d 39, 44; People v. White (1980) 101 Cal.App.3d 161, 164, 167.) " 'When a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self-defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense ( . . . § 692)." (People v. Adams (2009) 176 Cal.App.4th 946, 952.) Here, the jury was so instructed. "[I]t is a pure question of fact whether a police officer has used reasonable force in detaining or arresting a defendant. [Citation.] Consequently, we only need determine if there is sufficient evidence in the record such that a reasonable trier of fact could conclude that the force used in this case was reasonable. [Citation.] We may not reweigh the facts or substitute our judgment for that of the trial court." (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 8.)
The record does not support Sanchez's argument. "[I]f a jury finds that an officer is acting lawfully at the time a defendant resists, obstructs, or delays that officer, there is no bar to the defendant's conviction of section 148[, subdivision] (a)(1), even if an officer subsequently uses excessive force on the defendant." (People v. Williams (2018) 26 Cal.App.5th 71, 87, fn. omitted; accord, Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 696, 698.) Here, the jury must have believed Pena's testimony, which showed the Tasers were used after Sanchez had resisted the officers' orders. Regardless of whether or not the officers' subsequent use of force was reasonable, sufficient resistance had already taken place by this point to support the conviction.
Finally, Sanchez suggests he has a First Amendment defense (not raised at trial). It is not a crime to criticize the police. (Houston v. Hill (1987) 482 U.S. 451, 461-463; Duran v. City of Douglas (9th Cir. 1990) 904 F.2d 1372, 1377.) "For this reason, section 148 must be applied with great care to speech." (In re Muhammed C., supra, 95 Cal.App.4th at p. 1331.) However, when a defendant's words go "beyond verbal criticism, into the realm of interference with duty," he can be prosecuted for violating section 148. (People v. Lacefield (2007) 157 Cal.App.4th 249, 261, disapproved on other grounds by People v. Smith (2013) 57 Cal.4th 232, 242.) Here, the record is clear Sanchez was convicted for his conduct, not any protected speech. Substantial evidence supports Sanchez's conviction on count two. C. Ineffective Assistance of Counsel
Sanchez also maintains the officers did not act lawfully because they did not announce why he was being arrested. This contention is easily dismissed. Section 841 provides: "The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape. [¶] The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested." (Italics added.) When the circumstances make it apparent why a defendant is being arrested there is no requirement for the officer to formally announce his intention to arrest and the nature of the charge. (People v. Valenzuela (1959) 171 Cal.App.2d 331, 333-334, disapproved on other grounds by In re Culver (1968) 69 Cal.2d 898, 903-904 & fn. 8.)
Sanchez also asserts his privately retained counsel at the second trial (Russo) provided ineffective assistance. Sanchez raised this issue in an unsuccessful motion for new trial. Although ineffective assistance is not among the enumerated statutory bases for a motion for new trial (§ 1181), a nonstatutory motion may raise a claim of ineffective assistance of counsel. (People v. Callahan (2004) 124 Cal.App.4th 198, 209; People v. Fosselman (1983) 33 Cal.3d 572, 582.)
"Where, as here, the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel." (People v. Cervantes (2017) 9 Cal.App.5th 569, 590-591, disapproved on other grounds by People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 314-315; accord, People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) "[A]ll presumptions favor the trial court's exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences." (Taylor, at p. 724.)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ledesma, at p. 215.) To establish ineffective assistance of counsel, a defendant must show (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms and (2) that the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland, at pp. 688, 692; Ledesma, at pp. 216-217.)
To establish prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "In considering a claim of ineffective assistance of counsel, it is not necessary to determine ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." ' " (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
1. Background
After the verdict in the second trial was received, Prince filed a motion for new trial, asserting Russo had been ineffective in, among other things, (1) failing to thoroughly cross-examine C.K. regarding the cause of the underlying argument and inconsistencies with her testimony at the first trial; (2) failing to impeach Byrne with inconsistencies from his prior testimony; (3) failing to interview or call Adams to testify; (4) failing to prepare Sanchez to testify; and (5) failing to seek to exclude, under Evidence Code section 352, Pena's testimony regarding Sanchez's resisting arrest. The People's opposition argued Sanchez had failed to meet his burden of demonstrating ineffective assistance of counsel and that, in any event, the identified deficiencies did not prejudice Sanchez.
These are the instances of alleged ineffective assistance of counsel for which Sanchez has adequately preserved arguments on appeal. To the extent Sanchez intended to raise additional challenges regarding the effectiveness of his trial counsel, we deem such arguments forfeited because they are unsupported by reasoned legal analysis. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
The trial court held an evidentiary hearing, at which Russo was questioned by Sanchez's newly retained attorney and the prosecutor. Russo was a certified criminal law specialist who had practiced since 1977 and tried over 300 cases to a jury. Russo testified, consistent with his declaration filed in support of the motion for new trial, he represented Sanchez in the instant matter at the preliminary hearing and then was rehired about six months before the second trial. During this second period of representation, Russo also represented Sanchez in connection with gun and marijuana charges. Russo originally believed the latter charges would be tried first and was "a little confus[ed]" when he realized, at the September 7, 2016 trial readiness conference, that the domestic violence charge would be tried first.
Sanchez attempts to frame Russo's understanding, about the order in which his two felony matters were to be tried, as unreasonable. However, the reporter's transcript from the September 2016 trial readiness conference supports Russo's account.
Nevertheless, Russo believed this case, like most domestic violence cases, was fairly straightforward and he "felt adequately prepared to go to trial." Discovery was limited, and he reviewed transcripts from the preliminary hearing and first trial. There was no need to hire an investigator to interview witnesses again. He met with Sanchez "countless times" and provided Sanchez with a transcript of his testimony from the first trial. Russo believed Sanchez's prior testimony had been very good and, because it was not the first time he testified, Russo "gave him some rules, told him to pay attention, but [did not otherwise] prepare[] him to testify." They discussed the possibility Sanchez might be called to testify but the final decision was made during trial.
Russo did not recall Sanchez telling him he was upset that C.K. wanted to work as a stripper. Rather, Russo remembered being told C.K. had advertised on a prostitution Web site and Sanchez argued with C.K. about that. Russo believed the trial court had precluded him from asking C.K. about her prostitution activities. In retrospect, Russo believed the trial court may have been open to further consideration, and Russo felt he erred in not pressing the issue.
Russo also testified Sanchez told him Adams was present at the beginning of the verbal argument with C.K.—before any physical contact. Russo did not interview or subpoena Adams because he did not believe Adams had relevant information to provide. Sanchez also told Russo that Adams had a criminal record and described him as "a really marginal individual." Russo said, had he known of the information contained in Adams's declaration, it "would have changed the way [he] handled this case" and he probably would have subpoenaed Adams.
In support of Sanchez's motion for new trial, Adams submitted a declaration, in which he described a verbal argument between C.K. and Sanchez and stated "[C.K.] got more belligerent and became physical by pushing and shoving at [Sanchez]." Adams stated, "[he] did not see [Sanchez] get physical with [C.K.]" but observed C.K. clawing, scratching, and hitting Sanchez. According to Adams, Sanchez merely "put [C.K.] in a bear hug to try to stop her from striking him."
Russo did not believe there was any major discrepancy between C.K.'s testimony at the first trial (Sanchez hit her in the face) and her testimony at the second trial (Sanchez hit her in the head). Russo initially testified he made a tactical choice not to attack this discrepancy because he felt "she was not believable." He then testified it was not a tactical decision.
Russo also made a tactical choice not to impeach Byrne with an inconsistency between his testimony in the first and second trials, regarding whether he had a continuous view of C.K. At the initial trial, Byrne testified he had continuous visual contact with the woman on his doorstep from the time she first knocked on the door until she got into the car. At the second trial, Byrne stated he lost sight of her for a period. Russo explained he felt Byrne's testimony at the second trial had completely contradicted C.K.'s because Byrne stated he observed C.K. get in a car directly after being on Byrne's patio. Russo believed Byrne's contradiction of C.K.'s testimony, regarding being dragged across the lawn by Sanchez, was too significant to risk by impeaching Byrne.
Russo acknowledged, that unlike the first trial, he did not elicit testimony that Byrne had not found any drag marks or clumps of hair in his yard, which would have further impeached C.K.'s testimony. Russo stated in his declaration that his failure to cross-examine Byrne on either issue "was not a tactical decision." At the evidentiary hearing, Russo stated, even though Byrne was called by the prosecution, "Byrne was the only witness who basically made [C.K.] look like she was lying about what occurred, and I wasn't interested in impeaching him at all." Russo also explained his earlier declaration that his failure to elicit Byrne's prior testimony was not the result of a tactical decision, was "wrong . . . . I didn't want to impeach him [in] any way, and that was a conscious decision."
At the evidentiary hearing, Sanchez testified that, after rehiring Russo for the second trial, they met two or three times. Russo told him he believed the domestic violence charge could be dismissed, but also discussed the possibility of Sanchez testifying and told Sanchez they should prepare as if they were going to trial. Sanchez said they had no further discussions before he testified at the second trial. Although he expected to meet again with Russo before testifying and was surprised when called to the stand, Sanchez said the absence of such a meeting had no impact because he testified identically in both trials.
Sanchez also testified he told Russo that Adams witnessed the incident between himself and C.K "from the beginning." In particular, Sanchez told Russo that Adams saw C.K. headbutt Sanchez. Sanchez was not aware that Adams had a criminal record. Sanchez also testified he told Russo the argument with C.K. was about her desire to strip and that he threatened to kick C.K. out if she did not stop stripping.
In denying the motion for new trial, the trial court concluded neither element of a Strickland claim was established.
2. Analysis
Sanchez has the burden to demonstrate the inadequacy of his trial counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.) "[W]e begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] Accordingly, we have characterized defendant's burden as 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ' " 'no rational tactical purpose' " ' for an action or omission." (People v. Mickel (2016) 2 Cal.5th 181, 198.) " '[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Although there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "judicial scrutiny of counsel's performance must be highly deferential" (Strickland, supra, 466 U.S. at p. 689), defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id. at p. 691.) "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Id. at pp. 690-691.)
Sanchez asserts it was "professionally unacceptable" for Russo to fail to prepare Sanchez to testify at the second trial. Given that Russo provided Sanchez with written rules for testifying and transcripts of Sanchez's testimony from the first trial, it is inaccurate to assert that Russo did not prepare Sanchez to testify. In any event, the trial court was correct that Sanchez's testimony was the same at the first and second trials. Sanchez conceded as much. Sanchez has wholly failed to meet his burden to show prejudice.
Sanchez challenges the trial court's ruling with respect to Russo's failure to interview and call Adams. In denying Sanchez's motion for new trial, the trial court explained: "There's two problems with this claim. First of all, we had Mr. Russo's testimony yesterday that indicated he was not told any of this or given any indication by the defendant of any of this. I would also point out that at the first trial Mr. Adams was not called, and that is certainly some evidence that Mr. Adams—or, [Sanchez] had never told his first counsel of any of this either. Now [Sanchez] says otherwise, but Mr. Russo was quite clear on this." The trial court's finding Russo was not told Adams was a witness to the physical altercation is supported by substantial evidence—in particular, Russo's testimony and declaration. Furthermore, at trial, Sanchez himself testified Adams and his girlfriend left before the physical altercation began. We cannot reconsider the trial court's credibility finding. Sanchez has failed to establish the factual underpinning of this ineffective assistance of counsel claim.
Next, Sanchez challenges the trial court's ruling with respect to Russo's failure to cross-examine C.K. regarding the cause of the argument, which Sanchez now claims was his desire to have C.K. quit working as a stripper. Here, too, Sanchez mischaracterizes the record to the extent he suggests inquiry to C.K. along these lines would have established she was a liar. Sanchez himself testified the cause of the argument was the overheard comment that his and C.K.'s relationship was not "working out"; he mentioned nothing about stripping. In any event, the trial court found Russo credible in testifying he was never told Sanchez and C.K. had an argument about her working as a stripper.
Sanchez makes much of the fact that Russo, in his declaration filed with the motion for new trial, stated Sanchez told him the fight began because Sanchez wanted her to stop stripping. However, the trial court was not bound by Russo's self-proclaimed inadequacies in aid of a client (In re Burton (2006) 40 Cal.4th 205, 223), especially where Russo later contradicted the substance of his conclusory declaration. The trial court's credibility finding is supported by substantial evidence. Sanchez has again failed to establish the factual basis for this ineffective assistance of counsel claim.
Sanchez also challenges the trial court's ruling with respect to Russo's failure to cross-examine Byrne regarding inconsistencies between his testimony at the first and second trials. " 'The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel's part and seldom establish a counsel's incompetence. . . . " 'In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel.' " ' " (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) Even though Byrne was called by the prosecution, the trial court found Russo made a reasonable tactical decision in declining to impeach Byrne. Sanchez has not met his burden of showing it was unreasonable for Russo to have concluded the potential benefit of impeaching Byrne with his prior testimony was outweighed by the damage that would ensue from attacking a witness who testified favorably to the defense. It was also reasonable for Russo to decline to ask Byrne if he had noticed disturbed areas or clumps of hair in his lawn. When defense counsel asked those questions, during the first trial, Byrne had only responded, "Not that I recall."
Finally, Sanchez challenges the trial court's ruling Russo was not ineffective in failing to move to exclude Pena's observations of Sanchez, inside the home, under Evidence Code section 352. Sanchez contends his resistance to the officers' warrantless entry to his home cannot be used against him to demonstrate consciousness of guilt. Although "passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing" (United States v. Prescott (9th Cir. 1978) 581 F.2d 1343, 1351; accord, People v. Wood (2002) 103 Cal.App.4th 803, 808-809), he is wrong that active resistance to arrest may not be considered as bearing on consciousness of guilt. (People v. Garcia (2008) 168 Cal.App.4th 261, 283-284 [evidence defendant resisted arrest admissible to show consciousness of guilt]; People v. Wong (1973) 35 Cal.App.3d 812, 831 ["act of an accused designed to prevent arrest may afford an inference of consciousness of guilt and is receivable against him as an admission by conduct"].) Even if Russo had pressed the argument, the trial court made clear it would have nonetheless admitted the evidence, as it was not only relevant to consciousness of guilt but also contradicted Sanchez's and Silvas's testimony Sanchez was sober. "The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent." (People v. Lucas, supra, 12 Cal.4th at p. 444.) The trial court correctly concluded Russo did not provide ineffective assistance of counsel in failing to press a motion in limine that in all likelihood would have been overruled. Any error on counsel's part was not prejudicial.
At the time of the second trial, Sanchez already stood convicted of the resisting arrest charge. Russo sought to exclude the evidence but raised only a relevance objection and not Evidence Code section 352. The trial court denied the motion to exclude Pena's observations, stating the evidence was relevant to both consciousness of guilt and Sanchez's demeanor at the time police arrived at the scene. --------
The trial court did not err in denying Sanchez's motion for new trial.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.