IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRANDEN KYLE SMITH, DEFENDANT AND APPELLANT.
Super. Ct. No. 07F04773
The opinion of the court was delivered by: Mauro ,j.
P. v. Smith CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Branden Kyle Smith was convicted of carjacking and misdemeanor resisting a police officer. He was sentenced to 30 years to life after admitting three prior convictions under the three strikes law.
On appeal, defendant contends (1) his right to confrontation was violated when the trial court prevented him from cross-examining the victim about her alleged false application for relocation money; (2) his counsel was ineffective in failing to make an adequate offer of proof that the victim submitted a false application for relocation money; (3) he was denied due process when the trial court instructed the jury on defendant's custody status and allowed a uniformed officer to stand next to him during his testimony; (4) his counsel was ineffective for opening the door to cross-examination about defendant's prior convictions; and (5) cumulative error warrants reversal.
We conclude (1) defendant's right of confrontation was not violated, because his offer of proof did not establish the admissibility of the proposed cross-examination; (2) because defendant failed in his offer of proof, there is no evidence to support the claim of ineffective assistance of counsel; (3) defendant has not established a due process violation because the monitoring of a defendant by court security personnel need not be justified by a showing of "manifest need," and the instruction given by the trial court regarding his custody status was appropriate; (4) defense counsel was not ineffective where defendant himself opened the door to further cross-examination by testifying that he "never hit a woman" in his life; and (5) defendant has failed to establish cumulative error.
We will affirm the judgment.
On the evening of May 11, 2007, Melita Dennis drove to a Rite Aid Pharmacy located in a strip mall on Kiefer Boulevard near Watt Avenue. She parked her Chrysler Sebring convertible in the mall's parking lot with the top closed.
Ms. Dennis made her purchases in the store and returned to her car. Defendant opened the driver's side door, snatched Dennis by the neck, and pulled her to the left. Dennis fought back as she held the steering wheel.
During the struggle, defendant hit Dennis in the chest with a closed fist. He released Dennis's seatbelt and pulled her out of the car. Defendant then got in the driver's seat and put the car in reverse while Dennis held on to the car.
Defendant demanded that Dennis let go of the car. She cried out: "Help, somebody, he is stealing my car." After backing up a little, defendant put the Sebring into drive and drove off, causing Dennis to fall to the ground. Dennis sustained scratches, bruises, and broken artificial fingernails. Other people witnessed the incident and dialed 911.
Using the LoJack security system in Dennis's Sebring, law enforcement officers located the car at a South Sacramento strip mall. Many officers went to that location, including canine units. The officers converged on the Sebring when two men left a liquor store, entered the car and began to drive away.
The officers ordered defendant and his passenger to exit the car, put their hands up, and walk backwards toward the officers. Defendant initially complied, but then screamed and acted erratically, as if he did not hear the orders. Defendant walked toward the canine officers, one of whom warned him not to run. Hands in the air, defendant backed up and sat on a vehicle parked next to the Sebring. He sat on the hood for about two seconds before getting up and sprinting away.
A police dog was released and quickly caught up with defendant. Defendant struck the dog and continued running. A second dog was released, and the two dogs caught up to defendant and subdued him.
Ms. Dennis retrieved her car that night. Her personal effects, including her cell phone, wallet, and identification were missing, but were subsequently returned. Dennis identified defendant as her assailant in a field showup.
Defendant testified at trial. He said he met Ms. Dennis in January or February 2007 at an Albertsons grocery store in the same strip mall as the Rite Aid. They developed a relationship, which was at first platonic, but which became sexual.
Defendant asserted the carjacking was not real, but staged at the behest of Dennis. According to defendant, Dennis wanted him to damage her car enough to render the car inoperable, thus allowing her to collect insurance proceeds.
Defendant said that on the day of the incident, he met Dennis at the Kiefer Boulevard shopping center, drove to another strip mall, and hid Dennis's cell phone and wallet in the "cubbyhole" of a dumpster. Dennis then parked her car at the Rite Aid. Defendant walked across the street and met Dennis, where they allegedly staged the incident.
On cross-examination, defendant admitted he did not know the address of Dennis's apartment or the layout of her residence. He could not identify the agency where his alleged paramour worked, whether she had any tattoos or birthmarks, or any details about her family, such as siblings or parents.
Defendant's friend, Dekurt Taylor, also testified. In March or April 2007, he saw defendant driving with a woman in a champagne grey convertible. On the day before his testimony, during a photographic lineup conducted by a defense investigator, Taylor identified Dennis as the woman in the convertible. During his testimony, Taylor admitted abusing crack cocaine and alcohol.
Alicia McDonald is defendant's fianceee and the mother of his child. In March 2007, Dennis came to the apartment McDonald shared with defendant, and said she had come to the wrong address.
Defendant's mother testified that defendant told her he was seeing another woman in addition to McDonald. Defendant told her that he and this other woman planned to steal the woman's car.
A jury found defendant guilty of carjacking (Pen. Code, § 215, subd. (a))*fn1 and misdemeanor resisting a police officer (§ 148, subd. (a)(1)). Defendant admitted three prior convictions within the meaning of the three strikes law and the court sentenced him to 30 years to life.*fn2
I Defendant contends the court violated his right to confrontation by preventing him from cross-examining Ms. Dennis about her alleged false application for relocation money. We disagree.
"The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.'. . . Confrontation means more than being allowed to confront the witness physically. . . . '[A] primary interest secured by it is the right of cross-examination.' [Citation.]" (Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353].)
"However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The People made an in limine motion to exclude any reference to Dennis having received relocation money from the state. Defense counsel asserted Dennis's purported reason for the move, a letter she got from defendant, was false because Dennis had moved before getting the letter. Since Dennis had to file a declaration under oath to obtain relocation funds, counsel asserted her allegedly false oath was admissible to impeach her.
Counsel admitted that he did not have a copy of Dennis's declaration supporting her request for relocation funds and did not know what she had written on the request. He had made an "informal discovery request" to the prosecutor "to get a report that memorializes this transaction," but it "was never provided" as "[i]t doesn't exist." While he was missing any record of Dennis's alleged request for funds, counsel claimed this was merely a "gap" which could be filled by "the logical requirements of the state statutes."
Recognizing that a false claim for expenses could be relevant to credibility, the trial court granted the People's motion to exclude without prejudice so that defendant could "fill in the gap."
Defendant now asserts there was no "gap" in the evidence. He claims that his offer of proof that Dennis lied in order to get moving expenses was sufficient to allow him to cross-examine her on the matter.
"'It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise,' and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal. [Citation.] 'An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.' [Citation.]" (People v. Brady (2005) 129 Cal.App.4th 1314, 1332.)
Defendant's offer of proof did not carry his burden of establishing the relevance of the proposed cross-examination. Defendant did not sufficiently show that Dennis lied on an application for relocation funds. The court gave the defense leave to find the necessary proof, but counsel never came back with such evidence. Preventing defendant from engaging in this unfounded line of cross-examination did not violate his Sixth Amendment right to confrontation.
II Defendant also asserts that trial counsel was ineffective for failing to "fill in the evidentiary gap" by obtaining the relocation form or requesting an Evidence Code section 402 hearing to question Dennis about her claim for relocation expenses.
"To prevail on a claim of ineffective assistance of counsel, defendant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. . . .' [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 623 (Hart).) "Prejudice occurs only if the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728.)
As we have already discussed, there is no record of what Dennis claimed on her declaration for relocation funds, or even whether she made a claim. "[T]herefore, 'without engaging in speculation, we cannot infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial.' [Citation.] Accordingly, there is no evidence to support defendant's claim of ineffective assistance in this regard." (People v. Wash (1993) 6 Cal.4th 215, 269.)
Defendant argues he was denied due process when the trial court instructed the jury on defendant's custody status and allowed a uniformed officer to stand next to defendant during his testimony.
Defendant was not shackled during the trial. Before voir dire, the court asked defense counsel whether he wanted the jury to be instructed that defendant was in custody. Counsel agreed, and during voir dire, the court instructed the venire members that they could not infer guilt from the fact that defendant was in custody.*fn3 A deputy sheriff stood next to defendant when he testified.
In People v. Stevens (2009) 47 Cal.4th 625, reaffirming its prior decisions in People v. Duran (1976) 16 Cal.3d 282 and People v. Marks (2003) 31 Cal.4th 197, the California Supreme Court held that the monitoring of a defendant by court security personnel is not akin to a "human shackle" and that the monitoring of a defendant by such personnel need not be justified by a showing of "manifest need." (Stevens, supra, 47 Cal.4th at p. 629; see id. at pp. 634-637.) Defendant recognizes we are bound to follow Stevens (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and he merely raises this claim to preserve it for federal review.
Defendant also asserts he was prejudiced by the instruction because it stated he might be too poor to provide bail. Since there was evidence that defendant used drugs, he argues the instruction supplied the jury with a possible motive, that he needed money to buy drugs. We disagree.
Defense counsel agreed that the instruction should be given, and the instruction merely directed the jury not to speculate about defendant's custody status and not use his custody status in deliberations. The court's instruction told the jury to decide the case based on the evidence presented at trial. We presume the jurors followed the jury instruction given. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Defendant contends his trial attorney was ineffective for "opening the door" to the details of his prior convictions.
Defendant had two prior convictions for robbery and a prior conviction for attempted robbery. Before trial, the court ruled that defendant's testimony could be impeached with the prior convictions, but they would be sanitized and referred to as "prior felony theft convictions."
During his direct examination of defendant, defense counsel asked: "Did you ever actually hit [Ms. Dennis]?" Defendant replied: "No, I've never hit a woman in my life." The prosecutor objected to the answer as non-responsive. The court overruled the objection and allowed the answer to stand.
After the jury was dismissed, the prosecutor asked the court to revisit its ruling on impeaching defendant. The prosecutor argued she should be allowed to cross-examine defendant regarding the attacks that formed the basis for defendant's prior convictions. The court agreed, and allowed defendant to be cross-examined regarding whether he struck women during the prior robberies. On cross-examination, the prosecutor asked defendant about an incident at a Thrifty drug store in which he allegedly grabbed a woman by the arm and pointed a gun at her. Defendant denied either grabbing the woman or pointing a gun at her.
Defendant contends trial counsel was ineffective by asking if he "ever" hit Dennis, failing to request a curative admonition or instruction, and failing to register an Evidence Code section 352 objection.
As we have already noted, in order to prevail on a claim of ineffective assistance of counsel, defendant must show trial counsel was substandard and that defendant was prejudiced by counsel's performance. (Hart, supra, 20 Cal.4th at p. 623.)
Counsel asked defendant a simple question calling for a simple answer -- did defendant ever hit Dennis. Defendant went beyond the scope of the question and denied ever hitting any woman. Contrary to defendant's contention, we cannot say that his attorney was ineffective for failing to anticipate and warn defendant about every way that defendant could possibly make a false or overbroad assertion during examination.
Once defendant made the overbroad assertion, relevant impeachment was appropriate and not unduly prejudicial. Under the circumstances, defendant has not established that counsel was ineffective for failing to make an Evidence Code section 352 objection.
Likewise, counsel's failure to ask for an admonition or curative instruction was not ineffective. In order for a defendant to prevail on an ineffective assistance of counsel claim on direct appeal, the record must affirmatively show the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) The impeachment questioning was relatively brief, taking about a page of trial transcript. Trial counsel could reasonably conclude that an admonition or instruction would needlessly call attention to this evidence.
It was defendant, not trial counsel, who opened the door to impeachment cross-examination. Defendant has not established that his counsel's representation was substandard or prejudicial.
V Defendant contends the cumulative effect of the alleged errors was prejudicial. To the extent he is referring to contentions discussed above, we have already explained why his contentions lack merit, and we reject his cumulative claim. (People v. Roybal (1998) 19 Cal.4th 481, 531.) To the extent he is referring to other alleged errors, he has failed to sufficiently identify or brief them, and his claim fails for that reason.
The judgment is affirmed.
We concur: RAYE , P.J. BLEASE ,J.