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The People v. Freddie Figueroa

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


March 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FREDDIE FIGUEROA, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 07F04174, 07F06143 & 07F03923)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Figueroa

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Freddie Figueroa was charged in an amended information with 12 counts arising from three separate incidents that occurred on March 23 (counts 1-3), April 18 (counts 4-8, and 11), and June 7, 2007 (counts 9-10, 12). The trial court denied defendant's motion to sever, and all 12 counts were tried together. During trial, defendant pleaded no contest to two of the three counts related to the third incident: felony driving under the influence of alcohol (Veh. Code, § 21352, subd. (a); count 9); and felony driving with a blood alcohol level of 0.08 percent or more (id., § 23152, subd. (b); count 10).*fn1 As for the remaining counts, a jury found defendant guilty of inflicting corporal injury on a fellow parent (Pen. Code, § 273.5, subd. (a); count 1)*fn2 ; assault with a deadly weapon (§ 245, subd. (a); count 4); misdemeanor simple battery (§ 243, subd. (e); count 5) as a lesser included offense to inflicting corporal injury on a fellow parent; violating a protective order, a misdemeanor (§ 273.6, subd. (a); count 6); felony driving under the influence of alcohol (count 7); felony driving with a blood alcohol level of .08 percent or more (count 8);*fn3 and two counts of misdemeanor driving with a suspended license (counts 11 and 12). The jury was unable to reach a verdict on two counts of child endangerment (counts 2 and 3), and those counts were dismissed. In a bifurcated proceeding, the jury found true an allegation defendant had a prior conviction for making a criminal threat. (§ 422.) In another bifurcated proceeding, the trial court found true prior DUI convictions alleged in connection with counts 7, 8, 9, and 10.

The trial court granted defendant's motion to strike his prior conviction for making a criminal threat for purposes of the three strikes law and sentenced defendant to an aggregate term of ten years and four months in state prison, consisting of the middle term of three years for assault with a deadly weapon (count 4), a consecutive one year for inflicting corporal injury on a fellow parent (count 1), consecutive terms of eight months for each of the driving under the influence of alcohol counts (counts 7 and 9), plus a consecutive five years for the prior conviction (§ 667, subd. (a)).*fn4

Defendant appeals, contending the trial court erred in admitting evidence of his prior conviction for domestic violence; the admission of such evidence violated his right to due process of law under the state and federal constitutions; his counsel was ineffective in failing to object to evidence defendant tested positive for methamphetamine; the trial court abused its discretion in denying his motion to sever the counts related to the third incident from those related to the first and second incidents; the trial court made various instructional errors; and the trial court erred in denying his motion to vacate the judgment and allow him to withdraw his no contest plea in a prior case.

We shall conclude that each of defendant's contentions lacks merit and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Events of March 23, 2007 (Counts 1-3)

Defendant and Elba Palacios dated for five years. They have two young children together. In March 2007, defendant, Elba, and their children lived together in Sacramento. On March 23, 2007, they arrived home in their minivan after running errands. Elba was in the driver's seat, defendant was in the passenger seat, and the children were in the middle row of seats. While they were still in the car, Elba told defendant she was going to her mother's house and an argument ensued. Defendant attempted to take the key out of the ignition, and Elba grabbed his hand. Elba and defendant "wrestled" inside the car, and defendant struck Elba in the face. Defendant eventually got out of the van and made his way to the driver's side where Elba was seated. Elba locked the doors to the van, and defendant banged on the window. He then kicked it in, sending glass into Elba's face. Elba telephoned the police, and defendant left. The left side of Elba's mouth was swollen, and she had minor cuts on her face from the glass. A few days later, Elba and the children moved in with Elba's mother.

B. Events of April 18, 2007 (Counts 4-8, and 11)

At approximately 1:00 p.m. on April 18, 2007, defendant entered Elba's mother's home without her permission. Elba and the children were shopping at the time. Elba's mother telephoned Elba and told her defendant was there. When Elba's mother told defendant to leave, he became angry and struck her with an open hand four times. Elba returned home shortly after receiving her mother's call. As she entered the house, she saw her mother pulling on the back of defendant's shirt. Defendant struck Elba in the head and arms. Elba telephoned the police, while her mother grabbed defendant's back, attempting to pull him away from Elba. Defendant grabbed Elba's mother by her hair, dragged her outside, and threw her to the ground. As defendant did so, Elba's mother told Elba to leave, and Elba left in her minivan.

Defendant followed Elba in a large pickup truck, striking the rear bumper of her van. Elba stopped, and defendant pulled in front of her. Elba attempted to back up, but the van was still in drive, and it struck the back of defendant's truck. Elba then pulled around the truck and kept driving. Defendant continued to follow her, pulling alongside the van, and hitting the passenger side of the van with the driver's side of the truck. As Elba drove around a curve in the road, defendant struck the driver's side of the van with the right front corner of his truck, pushing two of the van's tires up onto the sidewalk. The van stalled. Elba attempted to get out but the driver's side door would not open, so she got out on the passenger side. She ran to a neighbor's house for help. She was crying and looked scared. She asked the neighbor to call the police, and he did. Meanwhile, defendant took off running. The van was "totaled" as a result of the incident. At 2:50 p.m., the neighbor was in his front yard when he "heard a whole bunch of crashing noises" and saw the truck and the van "both coming down the street and the truck was ramming the van."

A police officer arrived at the scene at 2:55 p.m. Defendant was taken into custody three minutes later, approximately six to eight blocks from the scene. He had three or four fresh scratches on his back and one on his neck. Defendant smelled of alcohol and appeared intoxicated. Defendant's blood was drawn at 5:07 p.m. that evening, and he had a blood alcohol level of 0.23 percent. A person similar in size to defendant would have had to consume between 10 and 13 drinks prior to 3:00 p.m. to have a blood alcohol level of 0.23 percent at 5:00 p.m., assuming the person did not drink any alcohol after 3:00 p.m. Defendant also tested positive for methamphetamine. A person may ingest methamphetamine days prior to a test and still test positive for the drug.

C. Events of June 7, 2007 (Counts 9-10, and 12)*fn5

At 12:40 a.m. on June 7, 2007, a police officer observed a Ford Mustang driven by defendant spin out of control and come to a rest along Highway 99. The officer directed defendant to exit the highway, and he did so. Defendant smelled of alcohol, and a preliminary alcohol screening (PAS) test showed his blood alcohol level was 0.14 percent. A blood sample drawn later that morning revealed defendant had a blood alcohol level of 0.17 percent.

D. Prior Act Evidence

Pursuant to Evidence Code section 1109, the jury was informed: "On December 21, 2005, the defendant was convicted of misdemeanor infliction of corporal injury on a cohabitant or a spouse or a party or a parent of one's child in violation of Penal Code Section 273.5 in Sacramento Superior Court."

E. The Defense

Defendant did not testify at trial or present any other defense witnesses. In her closing, defendant's trial counsel argued that Elba lied on the stand in an attempt to "deflect[] responsibility" away from herself, and that Elba, not defendant, was the aggressor in both the first and second incidents, including the car chase. She further argued that Elba's mother falsely accused defendant of behaving violently because she hated him.

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion

In Admitting Evidence That Defendant Had A Prior

Conviction For Domestic Violence

Defendant first contends the trial court erred in admitting evidence he was convicted of inflicting corporal injury on a cohabitant, spouse, party, or fellow parent in 2005 because the People failed to comply with the 30-day notice requirement set forth in Evidence Code section 1109. We are not persuaded.

Evidence Code section 1109, subdivision (a)(1) allows evidence of a defendant's prior acts of domestic violence in a prosecution for an offense involving domestic violence. Subdivision (b) of that section provides that "[i]n an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code." (Italics added.) Section 1054.7 provides that "disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred."

Here, the People moved in limine to admit evidence defendant had a prior conviction for domestic violence under Evidence Code section 1109. At the hearing on the motion, defendant argued such evidence was inadmissible because the People failed to disclose their intent to introduce it until December 7, 2007, six days before trial. The People responded that subdivision (b) required only that they disclose the evidence to be offered under Evidence Code section 1109, and that they complied with that requirement when they produced defendant's rap sheet, which included defendant's prior conviction for inflicting corporal injury on a cohabitant, spouse, party or fellow parent, more than 30 days before trial. The People further explained that they were only seeking to admit the fact of the prior conviction itself, i.e. that defendant was convicted of violating section 273.5, a misdemeanor, on December 21, 2005. In ruling that the People had complied with Evidence Code section 1109, subdivision (b)'s disclosure requirement, the court explained that the People were "simply [seeking] to utilize that prior conviction. They are not asking to have any other witnesses testify with regard to the matter. . . . [I]t's simply that there was a conviction previously . . . obtained by the People against [defendant] for domestic violence." Under these circumstances, the court found the People's disclosure of defendant's rap sheet was sufficient.

On appeal, defendant renews his claim that the People were required to notify him of their intent to use his prior conviction for purposes of Evidence Code section 1109 at least 30 days prior to trial, and asserts that the trial court therefore abused its discretion in admitting such evidence. We need not decide whether the People's failure to specifically advise defendant of their intent to introduce his prior conviction under Evidence Code section 1109 violated that section's notice requirement because defendant was not prejudiced by the alleged violation.

The rationale behind California's criminal discovery statutes is to prevent trial by ambush. (People v. Cabral (2004) 121 Cal.App.4th 748, 752; see also People v. Soto (1998) 64 Cal.App.4th 966, 980 ["The notice and disclosure requirements were designed to 'protect the defendant from unfair surprise and provide adequate time for preparation of a defense.'"].) There was no "ambush" in this case. On December 7, 2007, six days before trial was set to commence, defendant was told by the prosecutor that he intended to introduce evidence defendant had a prior conviction for domestic violence under Evidence Code section 1109. The People sought to introduce the fact of defendant's prior conviction via his rap sheet, which had been provided to defendant more than 30 days prior to trial; the People were not seeking to introduce evidence concerning the underlying facts of the offense. As the People observe, defendant "fails to explain what, if any, evidence he could have offered to counter the prior conviction if he had more notice of the prosecutor's intent to use that conviction. If [defendant] truly felt prejudiced by the lack of adequate notice, one would have expected him to seek a continuance, which he did not do." We agree. Defendant has failed to establish he was prejudiced by the People's alleged untimely disclosure of their intent to introduce evidence defendant had a prior conviction for domestic violence under Evidence Code section 1109, and the trial court did not abuse its discretion in admitting such evidence.

II

The Admission Of Evidence Of Defendant's Prior Conviction Did Not Violate His Right To Due Process Of Law

Defendant next contends the admission of evidence of his prior conviction for domestic violence under Evidence Code section 1109 violated his right to due process of law under the state and federal constitutions. He acknowledges that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court rejected a similar challenge to Evidence Code section 1108, a parallel provision involving evidence of prior sexual offenses. He also acknowledges that numerous Courts of Appeal, including this one, have upheld Evidence Code section 1109 against the constitutional challenge he raises based on the reasoning in Falsetta. (See, e.g., People v. Johnson (2000) 77 Cal.App.4th 410, 416-421 (Johnson).) Defendant argues, however, that "the appellate decisions have failed to recognize the fundamental distinctions that undermine the reliance on Falsetta." He is mistaken. Defendant first asserts that Evidence Code "section 1108 was drafted to track changes in the Federal Rules of Evidence," but "[t]here is no similar federal provision supporting the extension of propensity evidence . . . to cases of domestic violence." This fact has no bearing, however, on whether the reasoning in Falsetta with respect to Evidence Code section 1108 applies with equal force to Evidence Code section 1109. While the Supreme Court in Falsetta did note that Evidence Code "[s]section 1108 was modeled on rule 413 of the Federal Rules of Evidence" (21 Cal.4th at p. 912), that observation played no part in the court's reasoning that Evidence Code section 1108 did not violate due process. Defendant next asserts that the Supreme Court in Falsetta "placed particular emphasis on the unique nature of sexual offenders and their crimes, thus enhancing the probative value of prior offenses," but "nothing suggests that the domestic assailant is so unique among defendants that evidence of prior acts is particularly probative." We disagree. As this court explained in Johnson, "the Legislature determined the need for [propensity] evidence was critical in sex offense cases, given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. (People v. Falsetta, supra, 21 Cal.4th at pp. 911-912, 914.) The Legislature declared the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining witness credibility. (Ibid.) The commission of other sex offenses is at least circumstantially relevant to the issue of disposition or propensity to commit these offenses. (Ibid.) Such evidence is deemed objectionable not because it lacks probative value, but because it has too much." (77 Cal.App.4th at p. 418.) As this court also explained in Johnson, "[t]he same reasoning applies to prior acts of domestic violence under Evidence Code section 1109. Thus, the legislative history of the statute recognizes the special nature of domestic violence crime, as follows: 'The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.' (Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)" (Johnson, supra, 21 Cal.4th at p. 419.) Thus, special considerations unique to domestic violence crimes justify allowing propensity evidence relating to those crimes just as special considerations unique to sexual offenses justify allowing propensity evidence relating to those offenses. Finally, defendant asserts that the Supreme Court's decision in Falsetta was based, at least in part, on "the historical judicial ambiguity in regard to the admission of prior sex crimes in sexual offender cases," but "no such ambiguity has ever been cited" "[i]n regard to domestic violence cases . . . ." This argument is based on a misreading of Falsetta. It is true the Supreme Court found it "unclear whether the rule against 'propensity' evidence in sex offense cases should be deemed a fundamental historical principle of justice." (Falsetta, supra, 21 Cal.4th at p. 914, italics omitted.) However, the court immediately proceeded to observe that "even if the rule were deemed fundamental from a historical perspective, we would nonetheless uphold [Evidence Code] section 1108 if it did not unduly 'offend' those fundamental due process principles," and "[a]s will appear, in light of the substantial protections afforded to defendants in all cases to which [Evidence Code] section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence." (Id. at p. 915.) Thus, the "historical judicial ambiguity" defendant finds so significant in fact had no bearing on the Supreme Court's decision. As defendant has failed to identify any "fundamental distinctions that undermine the reliance on Falsetta," we continue to adhere to our decision in Johnson that because "the parallel provision . . . which allows admission of prior sex offenses, does not violate due process," "by parity of reasoning, the same applies to Evidence Code section 1109, since the two statutes are virtually identical, except that one addresses prior sexual offenses while the other addresses prior domestic violence." (Johnson, supra, 77 Cal.App.4th at p. 417.)

III

Defendant Cannot Establish He Was Prejudiced By His

Trial Counsel's Alleged Deficiencies

Defendant next contends his trial counsel was ineffective in that she was unaware of evidence defendant tested positive for methamphetamine following his arrest on April 18, 2007, even though such evidence had been turned over by the prosecution months earlier. Defendant argues that had counsel been aware of such evidence, she could have successfully moved to exclude it. As we shall explain, defendant cannot prevail on his claim of ineffective assistance of counsel because he cannot establish he was prejudiced by the admission of evidence he tested positive for methamphetamine.

"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] . . . . Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, '"'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.) We need not determine whether counsel's performance was deficient if we can dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].)

Defendant was charged in count 7 with driving "while under the influence of an alcoholic beverage or any drug" any or combination thereof on April 18, 2007. Because the evidence defendant drove while under the influence of an alcoholic beverage was overwhelming, evidence he also tested positive for methamphetamine on April 18, 2007, was harmless. The evidence showed defendant was taken into custody less than 10 minutes after colliding with Elba's van on April 18, 2007. He was located just a few blocks from the scene. When his blood was drawn two hours later, he had a blood alcohol level of 0.23 percent. To have a blood alcohol level of 0.23 percent at that time, a man of defendant's size would have had to consume between 10 and 13 drinks before 3:00 p.m. Contrary to defendant's assertion, no juror reasonably could conclude that he became intoxicated "after he wandered away from the collision site and before he was picked up six to eight blocks away." Thus, even assuming the trial court would have granted a request to exclude evidence of defendant's positive methamphetamine test had such a request been made, defendant's ineffective assistance claim still fails because there is no reasonable probability the jury would not have found him guilty of driving under the influence of alcohol.

To the extent defendant claims he was prejudiced as to any of the other counts for which he was found guilty because evidence he tested positive for methamphetamine "painted [him] as a particularly evil person," the claim is not well taken. Given the evidence defendant drove with a blood alcohol level that was nearly three times the legal limit, it is not reasonably probable he would have obtained a better result at trial as to any of the other counts had the jury not learned that he tested positive for methamphetamine on April 18, 2007.

IV

The Trial Court Did Not Abuse Its Discretion

In Denying Defendant's Motion To Sever

Defendant next contends the trial court abused its discretion in denying his motion to sever the counts related to the June 7, 2007, (third) incident from those related to the March 23 (first) and April 18, 2007, (second) incidents.*fn6 He claims the court's ruling compelled him to plead no contest to the DUI counts arising from the third incident. We are not persuaded.

The governing statute is section 954, which provides in part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." Section 954.1 adds that "[i]n cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading . . . evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."

"'[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law. [Citations.]' [Citation.] When, as in this case, the statutory requirements for joinder have been met, a defendant 'can establish error in the trial court's ruling allowing joint trial . . . only by making a "clear showing of prejudice . . . ."' [Citation.] Denial of a motion for severance amounts to a prejudicial abuse of discretion if the trial court's ruling falls outside the bounds of reason. [Citation.]" (People v. Hartsch (2010) 49 Cal.4th 472, 493.) In determining whether the trial court abused its discretion, we review the record before the trial court when it made its ruling. (People v. Hartsch, supra, 49 Cal.4th at p. 493.) In doing so, we consider "'(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.'" (Ibid.) If evidence underlying the offenses in question would be "cross-admissible" in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses. (Ibid.)

Here, the evidence would not have been cross-admissible in separate trials. (People v. Hartsch, supra, 49 Cal.4th at p. 493.) Moreover, defendant was not charged with a capital offense, and the joinder of the charges did not convert the matter into a capital case. Thus, only the second and third factors noted above are relevant.

As previously mentioned, defendant was charged in an amended information with 12 counts arising from three separate incidents. Below, defendant moved to have the counts related to each of the incidents tried separately. In denying defendant's motion to sever, the trial court ruled the counts related to the first and second incidents were properly tried together because both incidents involved domestic violence and the DUI offenses charged in relation to the second incident were connected in their commission to the domestic violence offenses charged in relation to that incident. The court further ruled that the counts related to the second and third incidents were properly tried together because both incidents involved the same class of crimes: "The second case actually involved a DUI as part of its commission. They are in the same class of crimes. Consequently, severance is not required, and is not something that should be granted, particularly in light of the issues of judicial economy." The trial court also found defendant would not be unduly prejudiced if the DUI offenses charged in relation to the third incident were tried with the offenses related to the first and second incidents, explaining: "We aren't talking about cases, for example, where you've got a homicide, and then you have some other maybe more minor crime. We're not talking about a case, for example, where one is substantially easy to prove and one is, at least as I understand it, barely chargeable. I'm not hearing those kinds of things. What I'm hearing is three cases, relatively independently, however all connected either in terms of the class of crimes or the commission of the offenses." We discern no abuse of discretion.

Contrary to defendant's assertion, the DUI offenses charged in relation to the third incident were not likely to unduly inflame the jury. As the People point out, defendant was charged with driving under the influence of alcohol, any drug, or any combination thereof and driving with a blood alcohol level of 0.08 percent or greater in connection with the second incident; thus, the potential for prejudice against him "as a drunk driver" would have existed even if the DUI offenses charged in relation to the third incident had been severed.

Likewise, contrary to defendant's assertion, the evidence proffered in support of the DUI offenses charged in relation to the second incident was not relatively weak. At the hearing on the motion to sever, defendant's trial counsel asserted the evidence proffered in support of the DUI offenses charged in relation to the second incident was relatively weak because defendant was not taken into custody until an hour after the collision, and thus, could have become intoxicated after the collision occurred. She was unable, however, to point to any evidence to support her assertion. Rather, she pointed to evidence the collision occurred at 2:50 p.m., and the People pointed to evidence defendant was detained eight minutes later a short distance away. Thus, as the trial court observed, "we're not talking about this big time gap" that would raise "a question with regard to the second DUI providing a substantial prejudicial effect . . . ."

Defendant's contention that the court's refusal to sever the DUI offenses charged in relation to the third incident forced him to plead no contest to those charges, thereby violating his constitutional right to a jury trial, also lacks merit. As discussed above, the trial court correctly determined that defendant would not be unduly prejudiced in his defense of the counts related to the first and second incidents if those counts were tried together with the counts related to the third incident. That defendant may have disagreed with that assessment and unilaterally elected to plead no contest to the DUI offenses related to the third incident does not give rise to a constitutional violation.

Finally, defendant fails to point to any evidence in support of his assertion that "it is reasonably probable that [he] would have obtained a more favorable outcome had he been able to choose to contest the evidence of the third offense before a jury in a separate proceeding." Indeed, below his counsel described the DUI counts related to the third incident as "a slam dunk winner" for the prosecution.

In sum, the trial court acted well within its discretion in denying defendant's motion to sever, and defendant's constitutional right to a jury trial was not violated by the court's ruling.

V

The Trial Court Did Not Err In Refusing Defendant's

Request To Modify CALCRIM No. 875

Defendant contends the trial court erred in refusing his request to modify CALCRIM No. 875 (assault with a deadly weapon) to "ma[k]e it clear to the jury that it was their duty to determine if this particular motor vehicle was, indeed a deadly weapon, as employed by [defendant]." We disagree.

In certain situations, a trial court may be required to give a pinpoint instruction that highlights a defendant's theory of the case. (People v. Bolden (2002) 29 Cal.4th 515, 558.) However, a defendant is not entitled to instructions that merely duplicate a point adequately covered by other instructions. (Ibid.) To the contrary, "[t]he practice of repeating instructions in a different way and thus loading the case with innumerable forms of instructions upon a particular subject is not to be commended." (People v. Ruiz (1928) 88 Cal.App. 502, 505.)

Defendant was charged with assault with a deadly weapon, to wit, a motor vehicle, in connection with the second incident. Where, as here, the object at issue (a pickup truck) is not deadly per se, i.e. it is not inherently deadly or dangerous, the trier of fact must determine whether it is a deadly weapon based upon "the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.)

Here, the jury was instructed that it must "decid[e] whether the People have proved their case beyond a reasonable doubt . . . ." With respect to the charge of assault with a deadly weapon, the jury was instructed in the language of CALCRIM No. 875 in pertinent part as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. [¶] . . . [¶] The term deadly weapon is defined as any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics added.)

These instructions make plain that the jury had to determine that the truck, which was not inherently deadly or dangerous, was used in such a way that it was capable of causing and likely to cause great bodily injury before it could find defendant guilty of assault with a deadly weapon. An additional instruction "that it was [the jury's] duty to determine if this particular motor vehicle was, indeed a deadly weapon, as employed by [defendant]" would have been duplicative. Defendant's assertion that the court's failure to further instruct the jury somehow deprived him of the opportunity to have the jury consider "his defense within the context of his theory of the case" is wholly without merit. Defendant remained free to argue to the jury that the truck was not a deadly weapon as used by him at the time in question.

VI

The Trial Court Did Not Err In Refusing To Instruct

The Jury On Simple Assault As A Lesser Included

Offense To Assault With A Deadly Weapon

Defendant next contends the trial court erred in refusing to instruct the jury on simple assault as a lesser included offense to assault with a deadly weapon. Again, we disagree.

The trial court must instruct on a lesser included offense where there is substantial evidence the defendant is guilty only of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155, 162 [Breverman].) As the court explained in Breverman: "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Id. at p. 162.) "Substantial evidence in this context is that which a reasonable jury could find persuasive." (People v. Halvorsen (2007) 42 Cal.4th 379, 414.) We accept, for purposes of this appeal, that simple assault is a lesser included offense of section 245, subdivision (a)(1), assault with a deadly weapon.

At trial, defendant requested the court instruct the jury on simple assault as a lesser included offense to assault with a deadly weapon, claiming the jury "could determine that a vehicle is not a deadly weapon by the definition, and it's up to them to do that." The trial court refused, noting that the evidence did not warrant such an instruction. Defendant contends that was error because there was substantial evidence from which a jury could conclude that he did not employ the vehicle in a manner likely to cause death or great bodily injury. We disagree.

The evidence adduced at trial showed defendant relentlessly pursued Elba in his truck as she drove away from her mother's house, striking her van at least three times. At one point, he struck the driver's side of her van with such force that he pushed two of its wheels up onto the sidewalk and damaged the driver's side door such that it would no longer open. A neighbor who witnessed the van and truck driving down the street testified that "the truck was ramming the van." On this record, no juror reasonably could conclude that defendant was guilty of simple assault but not assault with a deadly weapon. As we stated in People v. Golde (2008) 163 Cal.App.4th 101, 117, "there is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." That Elba was inside her van and the victim in Golde was on foot is of no consequence. The trial court did not err in refusing defendant's request to instruct the jury on simple assault as a lesser included offense to assault with a deadly weapon.

VII

The Trial Court Did Not Err In Failing To Instruct

The Jury On Self-Defense

Defendant next contends the trial court erred in failing to sua sponte instruct the jury on self-defense in conjunction with counts 1 (inflicting corporal injury on a fellow parent), 4 (assault with a deadly weapon) and 5 (inflicting corporal injury on a fellow parent). We discern no error.

In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. (Breverman, supra, 19 Cal.4th at p. 154.) But, "[i]n the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises '"only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case."' [Citations.]" (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Defendant claims substantial evidence supported such a defense and that the defense was not inconsistent with his theory of the case.

To justify an act of self-defense for an assault charge under section 245, a defendant must honestly and reasonably believe he is in imminent danger of bodily injury. (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) In addition, "'any right of self-defense is limited to the use of such force as is reasonable under the circumstances.'" (Ibid.)

With respect to count 1 (infliction of corporal injury on a fellow parent arising from the first incident), defendant claims that Elba's testimony that she grabbed his hand when they were in the van triggered the trial court's duty to instruct sua sponte that self-defense could provide a complete defense to that count. Not so. The evidence showed Elba was attempting to prevent defendant from removing the key from the van's ignition when she grabbed his hand, a struggle ensued, and defendant struck Elba in the face. There is simply no evidence to support a finding that defendant reasonably believed he was in imminent danger of bodily harm when he struck Elba. Accordingly, the trial court did not err in failing to instruct the jury on self-defense in conjunction with count 1.

With respect to count 4 (assault with a deadly weapon), defendant points to Elba's admission that she struck defendant's truck with her van in support of his assertion that the trial court had a duty to instruct sua sponte on self-defense in conjunction with that count. Again, he is mistaken. Even assuming for argument's sake that Elba intentionally struck defendant's truck with her van as defendant suggests, the evidence showed that she drove away after doing so and that defendant continued to pursue her, striking her van two more times. On this record, there is simply no evidence to support a finding that defendant reasonably believed he was in imminent danger of bodily harm when he struck Elba's van with his truck the second and third times. Accordingly, the trial court did not err in failing to instruct the jury on self-defense in conjunction with count 4.

Finally, with respect to count 5 (inflicting corporal injury on a fellow parent arising from the second incident), defendant relies on Elba's testimony that her mother kept grabbing the back of his shirt and the officer's testimony that defendant had scratches on his back and neck in support of his assertion that the trial court had a duty to sua sponte instruct the jury on self-defense in conjunction with that count. Not so. Count 5 alleged defendant inflicted corporal injury upon Elba, not her mother. Defendant does not attempt to explain, nor can we discern, how evidence that Elba's mother grabbed defendant's shirt and scratched him could justify defendant striking Elba. The trial court did not err in failing to instruct the jury on self-defense in conjunction with count 5.

VIII

The Trial Court Did Not Abuse Its Discretion In

Denying Defendant's Motion to Vacate The Judgment In

A Prior Case Used To Enhance His Sentence In This Case

Finally, defendant contends the trial court abused its discretion in denying his motion to vacate the judgment of conviction and allow him to withdraw his no contest plea in a prior case where the court failed to advise him of the immigration consequences of his plea. We are not persuaded.

Defendant was born in Guatemala. In October 2006, he pleaded no contest to making a criminal threat in exchange for probation and the dismissal of one felony and two misdemeanor cases. Defendant was placed on five years' formal probation, including 210 days in county jail with 117 days credit for time served. At the time he entered his plea, he was a lawful permanent resident of the United States; he was not a citizen. Defendant's prior conviction for making a criminal threat is the basis for the five year enhancement imposed in this case pursuant to section 667, subdivision (a). In October 2008, two years after defendant entered his no contest plea, he filed a motion to vacate the judgment of conviction in that case and allow him to withdraw his plea on the ground he was not advised of the immigration consequences of his plea in accordance with section 1016.5.

Pursuant to section 1016.5, subdivision (a), "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." The trial court found, and the parties' do not dispute, that no such advisement was given at the time defendant entered his no contest plea.

Pursuant to section 1016.5, subdivision (b), where, as here, the court fails to so advise the defendant "the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty."

To prevail on a motion to vacate under section 1016.5, a defendant must demonstrate (1) he was not properly advised of the immigration consequences as provided in section 1016.5; (2) there existed, at the time of the motion, more than a remote possibility that the conviction would have one or more of the specified adverse immigration consequences, and (3) he was prejudiced by the nonadvisement. (People v. Totari (2002) 28 Cal.4th 876, 884.) In addition, "the trial court may properly consider the defendant's delay in making his application, and if 'considerable time' has elapsed between the guilty [or no contest] plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay." (People v. Castenada (1995) 37 Cal.App.4th 1612, 1618.) "The reason for requiring due diligence is obvious. Substantial prejudice to the People may result if the case must proceed to trial after a long delay." (Ibid.) In Castenada, the court held that "the trial court acted well within the bounds of its discretion to deny relief" where the "defendant waited seven years to seek relief" and "offered no justification for the delay." (Ibid.) The same is true here.*fn7 Defendant waited two years before moving to vacate the judgment and to withdraw his plea and in doing so offered no justification for the delay. Under these circumstances, the trial court acted well within the bounds of its discretion in denying his motion to vacate the judgment and allow him to vacate his no contest plea in the prior case. (Castenada, supra, 37 Cal.App.4th at p. 1618.)

DISPOSITION

The judgment is affirmed.

We concur: HULL,J. MAURO,J.


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