Opinion
C088963
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. TREMAINE ULYSSES SMILER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CH035827)
A jury found defendant Tremaine Ulysses Smiler guilty of battery by a prisoner on nonconfined persons, High Desert State Prison Correctional Officers Donald Murphy and Dominic Avila. Defendant appeals, contending reversal is required because: (1) there was insufficient evidence to support the conviction as to the battery on Officer Avila; (2) his trial attorney provided ineffective assistance of counsel; and (3) the court should have sua sponte instructed on accident and self-defense. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
Prosecution Evidence
Defendant is an inmate of High Desert State Prison. The testimony of High Desert State Prison Correctional Officers Corey Barrier, Christopher Gallyer, and Murphy established the following time line of events. On October 24, 2016, correctional officers were conducting a mass search of inmate cells. Defendant and the other inmates were handcuffed and placed in the prison day room while the officers conducted the search. During this process, Officer Barrier observed defendant "standing up very escalated, yelling, [and] cursing." The officers decided to escort defendant out of the building to avoid inciting other inmates. Officer Gallyer began the escort, leading defendant by his arm, and Officers Barrier and Murphy accompanied them.
The escort stopped when they reached a locked gate. Defendant turned to Officer Barrier and said he was going to "fuck [him] up." Defendant then moved his head in a headbutt motion directed at Officer Murphy. Officer Murphy moved and defendant's head hit Officer Murphy's shoulder, resulting in his shoulder being sore and red with slight bruising the following day.
Officer Avila stood at a podium near the group. He observed defendant headbutt Officer Murphy and sprinted over to assist. Officer Avila wrapped his arms around defendant and he and the other officers took defendant to the ground. At some point after he was taken to the ground, defendant vomited. Defendant was prone on his stomach with his hands handcuffed behind his back and Officer Avila was on top of him. Defendant thrashed, trying to get the officers off of him. Defendant tried to reach for Officer Avila's genitals with his hand, but Officer Avila moved and defendant instead grabbed his right upper thigh "extremely hard." Following the contact, Officer Avila's upper thigh was red and bruised.
B
Defense Evidence
The defense case consisted of the testimony of three nurses at High Desert State Prison, one correctional officer, and inmate Roger Troy Broyles. Broyles was present in the day room during the incident and testified as the main eyewitness for the defense. Broyles watched as officers began to escort defendant out of the building. During the escort, at least one officer started "body checking" defendant, which Broyles described as, "when you're right up on somebody and hitting them with your chest . . . ." Broyles saw one officer strike defendant in the face. The officers then took defendant to the ground. The other officers made all the inmates turn away from the altercation, so Broyles could not see what happened next. He heard defendant repeat that he "couldn't breathe," two to three times and speculated that it was probably because the officers were on top of him.
DISCUSSION
I
Substantial Evidence Supports Defendant's Conviction For Battery Of Officer Avila
To find a prisoner guilty of battery of a nonconfined person under Penal Code section 4501.5, the jury must determine beyond a reasonable doubt that: (1) the prisoner willfully touched the victim in a harmful or offensive manner; (2) when the prisoner acted, he or she was serving a sentence in state prison; and (3) the victim was not serving a sentence in state prison. (CALCRIM No. 2723; see People v. Flores (2009) 176 Cal.App.4th 924, 930-931.) Defendant argues his body's positioning and the fact that he vomited during the altercation demonstrate any touching of Officer Avila was not willful beyond a reasonable doubt because it was "attributable either to the three people in control of his arms or by his body's involuntary gastric evacuation." We disagree.
All further section references are to the Penal Code unless otherwise specified. --------
When the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is "reasonable, credible and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid.) "Even when there is a significant amount of countervailing evidence, the testimony of a single witness" may be sufficient to constitute substantial evidence. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) We will not set aside a judgment for insufficient evidence unless it clearly appears "that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Defendant's argument is contradicted by Officer Avila's testimony at trial, which provides substantial evidence for the conviction. Officer Avila testified that, after he helped bring defendant to the ground, defendant thrashed around trying to get the officers off of him. During this struggle, Officer Avila felt defendant move his hand in an attempt to grab his genitals. Officer Avila shifted his body in response and defendant instead grabbed Officer Avila's upper thigh area "extremely hard." Following the incident, Officer Avila's upper thigh was red and sore. When asked if defendant's handcuff chain could have caused the injury, Officer Avila answered, "[n]o, I could definitely feel [defendant's] hand trying to grab my genitals and eventually definitely grab my inner thigh."
Based on Officer Avila's testimony, a jury could reasonably conclude defendant willfully committed an offensive touching of Officer Avila. (See People v. Leigh (1985) 168 Cal.App.3d 217, 221 ["[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions"].) We therefore affirm defendant's conviction for battery of Officer Avila.
II
Defense Counsel Did Not Provide Ineffective Assistance
Defendant contends his counsel was ineffective for failing to object to evidence about defendant's possible consumption of prison manufactured alcohol and for specifically eliciting that such alcohol was illegal in prison. He believes there could be no strategic purpose supporting these decisions. We conclude defense counsel's performance did not fall below an objective standard of reasonableness. We accordingly do not address whether defendant was prejudiced. (People v. Kipp (2001) 26 Cal.4th 1100, 1123.)
A
Factual Background
Defense counsel's theory of the case was that the officers fabricated the story about the altercation because they did not want to get caught abusing an inmate. Defense counsel used inconsistencies between the officers' written reports and live testimony to support this theory.
During direct examination of Officers Murphy and Avila, the prosecutor elicited testimony about defendant's consumption of inmate produced alcohol, known as "pruno." The officers testified defendant's vomit on the day of the altercation smelled and looked like "pruno vomit," or vomit containing inmate-produced alcohol. Defense counsel made only one objection to this line of questioning, objecting on relevance grounds to the prosecutor's question to Officer Avila about his knowledge of the alcohol manufacturing process.
Neither Officer Murphy nor Officer Avila explicitly testified on direct examination that pruno consumption was illegal in prison, but defense counsel elicited this information from both officers during cross-examination. Defense counsel elicited from Officer Murphy that he believed defendant's consumption of pruno played a role in the altercation. Defense counsel also established that the officers did not note the pruno vomit in their respective reports nor had they initiated disciplinary action against defendant for drinking pruno.
During closing argument, defense counsel addressed the evidence of defendant's asserted pruno consumption. He asked the jury, "[a]nd what's all of this about pruno now? You heard me ask every officer how come you didn't put it in your report? Not one of them put it in their report. You heard it today. Why? Because they're going to run down [defendant] now. Not in the report at all. I find that odd. That's a violation. I mean, if anything, it might help their case somewhat. No one put it in there."
B
Analysis
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) To establish ineffective assistance of counsel, a defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 690-692 [80 L.Ed.2d 674, 695-696]; Ledesma, at pp. 216-217.) Courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Strickland, at p. 689 [80 L.Ed.2d at pp. 694-695].)
We disagree with defendant's contention that defense counsel's failure to object to the pruno evidence constitutes ineffective assistance. Choosing whether to object to evidence is a tactical decision. (People v. Maury (2003) 30 Cal.4th 342, 415.) "[B]ecause trial counsel's tactical decisions are accorded substantial deference, failure to object seldom establishes counsel's incompetence." (Id. at pp. 415-416.) To prevail on an ineffective assistance of counsel claim on appeal, "the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.)
Here, defense counsel's failure to object to the pruno evidence served an apparent tactical purpose. As part of his theory of the case, defense counsel argued that, because of the inconsistencies between the officers' contemporaneous written reports and subsequent live testimony, their testimonies were not credible. Defense counsel used the pruno evidence as an example of one of these inconsistencies, contrasting the officers' live testimony about defendant's alleged pruno use with the absence of any reference to pruno or vomit in any written report of the incident. These discrepancies were meant to undermine the officers' credibility and bolster the defense's theory that the officers' testimony contained fabrications.
The same is true of defense counsel's questioning of Officers Murphy and Avila regarding the illegality of pruno -- there was a tactical purpose for eliciting that pruno consumption violated prison rules. Defense counsel used the illegality of pruno to suggest that if actual evidence of defendant's pruno consumption existed, the officers would have mentioned it either in their reports or in a subsequent disciplinary write up. During closing argument, defense counsel underscored that the pruno evidence was "[n]ot in the report at all. I find that odd. That's a violation. I mean, if anything, it might help their case somewhat. No one put it in there." This supported defense counsel's trial strategy, which was to undermine the credibility of the testifying officers and to suggest the altercation did not actually happen.
Because there was a tactical reason for failing to object to the pruno testimony and eliciting testimony that pruno is illegal in prison, defense counsel's conduct falls within the wide range of reasonable professional assistance. (See Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695].) As such, the record does not establish ineffective assistance of counsel.
III
The Trial Court Did Not Have A Duty To Instruct The Jury Sua
Sponte On The Defenses Of Accident And Self-Defense
Defendant argues the evidence at trial gave rise to two alternative defenses to the battery of Officer Avila: (1) defendant touched Officer Avila accidentally, not willfully; or (2) the touching was willful but performed in self-defense. According to defendant, the trial court erred in failing to instruct, sua sponte, on both defenses and this error violated his due process rights and prejudiced him. We disagree.
A
Accident
The trial court has a duty to instruct sua sponte on "general principles closely and openly connected with the facts," including specific defenses where "it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 716.) Defendant argues there "was substantial evidence to raise a reasonable doubt as to whether [defendant's] movement of his hands was willful or accidental," which necessitated an instruction on accident. Even assuming defendant raised substantial evidence of accident, Anderson instructs otherwise. (People v. Anderson (2011) 51 Cal.4th 989.)
In Anderson, our Supreme Court held that, while a court has a duty to instruct sua sponte on certain defenses, this duty does not extend to accident where "the defendant's theory of accident is an attempt to negate the intent element of the charged crime" and "assuming the jury received complete and accurate instructions on the requisite mental element of the offense . . . ." (People v. Anderson, supra, 51 Cal.4th at pp. 992, 998.)
Here, the trial court instructed the jury on the requisite mental element of battery, i.e., defendant had to have "willfully" touched Officer Avila in a harmful or offensive manner. (CALCRIM No. 2723; see People v. Anderson, supra, 51 Cal.4th at pp. 998-999.) In contrast, instructions on accident explain that a defendant is not guilty of a charged crime if he or she acted "without the intent required for that crime, but acted instead accidentally." (CALCRIM No. 3404; see Anderson, at p. 996.) As such, as in Anderson, the obligation of the trial court "to instruct on accident extend[s] no further than to provide an appropriate pinpoint instruction upon request by the defense." (Anderson, at p. 998.)
Defendant concedes Anderson applies. He nonetheless argues our Supreme Court incorrectly decided Anderson and urges us to decline to follow its precedent. We decline to do so. "Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In the absence of a subsequent contrary decision of the United States Supreme Court, we are bound by the decisions of our Supreme Court. (Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 673.) This applies to Anderson, which instructs that the trial court did not have a duty to instruct sua sponte on accident. (People v. Anderson, supra, 51 Cal.4th at pp. 998-999.)
B
Self-Defense
Defendant notes Broyles testified he heard defendant saying he could not breathe after officers took him to the ground. He argues, if Broyles's testimony was found true, "a jury could plainly infer that [he] reasonably believed himself to be in danger of suffering bodily injury through suffocation." Accordingly, defendant believes the trial court had a duty to instruct sua sponte on self-defense. We disagree.
Defense counsel did not mention Broyles's testimony about defendant struggling to breathe during closing argument, nor did he mention self-defense. When discussing jury instructions, the trial court remarked that the self-defense language in CALCRIM No. 2723 was not applicable and the defense's theory did not include self-defense. Defense counsel responded he had no objection to the removal of the self-defense instructions.
Rather than claim defendant acted in self-defense, defendant's trial strategy was to suggest the officers made up the altercation. Defense counsel highlighted that the officers alleged defendant drank pruno, but never mentioned it in any written reports following the incident. He minimized the physical injuries of the officers, suggesting the strap of Officer Murphy's protective vest could have caused the red mark on his shoulder. He also argued it was physically impossible for defendant to grab Officer Avila's thigh when his hands were cuffed behind his back. During closing argument he posited, "[i]f you're untruthful about the little things, you have to suspect about the big things. This just snowballed on those officers, this snowballed. They didn't want to get caught for abusing an inmate, you can lose your job over that." Self-defense instructions would have conflicted with the defense's theory that the altercation never happened.
" ' "Appellate insistence on sua sponte instructions [concerning defenses] which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions." ' " (People v. Barton (1995) 12 Cal.4th 186, 197.) Given defendant's theory at trial, the trial court did not have an obligation to instruct the jury sua sponte on self-defense.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Butz, J.