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The People v. Branden Kyle Smith

March 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

BACKGROUND

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 ...


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