IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSHUA WAYNE VINYARD, DEFENDANT AND APPELLANT.
Super. Ct. No. 08F01248
The opinion of the court was delivered by: Raye,p.j.
P. v. Vinyard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Joshua Wayne Vinyard of assault by means likely to produce great bodily injury and battery causing serious injury, and found he personally inflicted great bodily injury. (Pen. Code, §§ 243, subd. (d), 245, subd. (a)(1), 12022.7, subd. (a).)*fn1 The trial court found defendant had a prior strike and prior serious felony. (§§ 667, subds. (a) & (b)-(i), 1170.12.) The trial court sentenced defendant to prison for 12 years, and defendant timely appealed.
On appeal, defendant contends trial counsel should not have revealed during voir dire that defendant had a prior conviction for child molestation, trial counsel should have cross-examined the victim about gang membership, the trial court should not have ruled the People could impeach defendant with the prior molestation conviction, the People failed to disclose exculpatory evidence, and no substantial evidence supports the assault verdict. Each of these contentions is frivolous or borders on frivolous. We shall affirm.
Myesha Shadd testified that she worked at a Del Taco restaurant on February 16, 2008. At around 11:40 p.m., there was a dispute in the drive-thru line. She saw a man standing next to a car, "going back and forth with a guy in the car. Arguing, saying loud cuss words." A woman was driving the car and the man, who "looked like a rocker" and had tattoos, was in the back seat. Another customer "tried to break up the argument." The rocker (victim David Acuna) got out of the car and the argument continued "across the street." Shadd called 911 and for a while could not see what was happening, but then went into the parking lot and could see the two men punching at each other, but mostly missing: "They were both intoxicated. It was a clumsy fight." She thought the victim "kept it going.
He was the one that got out of the car. He made the initiation. He, the rocker, he's the one that ran after the guy." The other customer tried to break the men up and "grabbed them" at one point. After about a minute, the fight broke up and the victim walked back to the restaurant, went to the bathroom, and then asked after his girlfriend. Shadd told him his girlfriend was coming back and he waited outside. He was calm, polite, and never left the restaurant.
After about 30 seconds, a man Shadd had seen much earlier that day jogged across the street towards the victim, who was still outside the restaurant. This man, whom Shadd identified as defendant, was angry, had his fist raised, and said something about his friend. Defendant struck the victim in the face a few times. Defendant struck first, although the victim was not acting aggressively, but seemed confused and his hands were up with his palms toward defendant, in a defensive posture. The victim fought back and although he took a hard hit to the head, defendant kept punching him. Both were throwing "fast, aggressive, contact punches," however, the victim missed some of his punches, and those he connected were light, defensive, punches, whereas "all [of defendant's] punches were making contact, like he knew where he wanted to hit him. They were hitting his face, his body. Every punch he gave was contact to the rocker." At one point defendant swung the victim into a car and they fell, then defendant began choking him. Shadd never saw the victim lift or swing defendant, and defendant never appeared to be scared or seeking to break off the fight. The fight moved toward the restaurant window, and "defendant swung the rocker into the window." Defendant "took him by the collar of his jacket, it looked like, and took his momentum and was head first." When defendant did this a second time, the victim's head went through the window. Then defendant "had his hand on the rocker guy, on I guess like his head, and another on his body, and he was pushing his head into the window, repeatedly, while the guy's head was in the window." Shadd called to Brian Slagter, a fellow employee and a "big guy," and as Brian ran out, defendant ran; "[h]e got scared off."
Brian Mertz testified he was with defendant that night. Mertz, who was drunk, got into an argument with a man in a car at the Del Taco, and the fight continued across the street. Mertz called 911, stating he had a "bad feeling something was going to happen" because "when [defendant] came back from Del Taco, he asked me what's wrong, and I said, I just got hit in the back of the head, you know." Defendant "said that if you're my friend, you'd tell me who it is, and I didn't tell him," then defendant ran across the street. Defendant, who had been drinking, was "fired up," and although Mertz could not see a fight, he could hear yelling and he screamed at the 911 operator that "my friend's beating him up."
Brian Slagter testified he broke up an argument in the drive-thru line involving a man in a car and two men outside the car, one of whom stayed by the sidewalk. He saw the men run across the street, and saw a "couple blows" but he could not tell who hit who. Later, Slagter heard Shadd scream "Big Guy," and when Slagter ran out he saw "the punk rocker kid with his hands up and another gentleman." The rocker seemed confused and "I seen the punk rocker throw his hands up like he didn't, like, What's going on dude? I don't want no more. [¶] And I heard another gentleman scream, Why are you -- do you want to fight with my friends?" and then the two men fought. Defendant, whom Slagter identified in court, threw the first punch, and Slagter had not seen the other man acting aggressively. The men "scuffled" and tripped, falling onto a vehicle, and then "when the punk rocker was on the window, Vinyard had the advantage, and Vinyard then punched him. And when he punched him, the man's head was on the window, and the head went through the window." Until then, "it was a pretty even scuffle." The first two punches at the window did not break the glass: "The last, third punch when he had his head up against the window. It shattered. It was gone. . . . And when he hit him on the window, he got scared. I screamed, he ran." The man "pulled his head out. When the window broke, it came down on top of the two gentlemen." Defendant continued to hit the victim until Slagter screamed and chased him. During the fight Slagter never saw defendant try to stop the fight or appear to be afraid.
David Acuna testified his friend's girlfriend was giving him a ride and he sat in the backseat because the front passenger door did not work. After they placed their order in the drive-thru line, he heard some yelling and saw a man walking by the line and swearing at the people in the cars. Acuna, who was drunk, got out of the car, "chased him across the street, and we got in a fight." The fight was "clumsy, stupid." Another man soon broke it up and Acuna returned to Del Taco and found his companion had left. After he spoke with a woman inside, he went outside to wait for his companion, and after "[m]aybe seconds" defendant said, "Why are you fucking with my friends?" Acuna turned around and defendant slugged him in the face. Acuna had not challenged defendant, but "was backing up" and "was surprised." He might have said something like, "Why is your friend being a jerk?" but he could not be sure. In any event, Acuna punched back and the men "went down" onto the hood of a parked car, "[c]ame up off the car, went towards the window, and my head crashed through it" when defendant shoved him. Defendant continued to hit Acuna after Acuna's head went through the window. At no time did defendant try to stop fighting or display fear.
Acuna admitted he had a misdemeanor conviction for "tampering with a vehicle" and explained he and a friend had been "monkeying around with a convertible, like jumping on the back, on the seats. [¶] We weren't trying to do anything else." He denied being in a gang, but conceded he had "lots of kinds" of tattoos and displayed and described some to the jury.
A doctor testified Acuna had various cuts requiring attention, including to his temporal artery, a serious injury that could cause someone to bleed to death. She also testified to defendant's injuries.
Officer Michelle Brown testified that she spoke with Brian Slagter that night, and he told her defendant ran across the street "toward Acuna, stating something to the [effect] of: Why did you hit my friend. [¶] At that point, Slagter stated he saw Acuna kind of back up, put his hands as if he was trying to say, you know, what's going on." Slagter told her defendant then started punching Acuna, the two fell onto a parked car, and eventually "Vinyard grabbed Acuna's head and slammed it against the window a couple times. And then on the second time caused it to shatter." Then "more punches were thrown and Slagter stated that Vinyard took off running across the street." Officer Brown testified that defendant was belligerent at the hospital.
The jury heard recordings of telephone calls defendant made from jail. According to a transcript, the accuracy of which is not disputed, defendant told a man: "So Brian needs to fucking -- you need to tell Brian he needs to have my back; otherwise, I'm going to jail." The man said he spoke to Brian but it did not "register" in Brian's head. Defendant told the man to try again, suggesting he say: "'We're Josh's [defendant's] friends, and if you're Josh's friend, then we're your friend too, you know? We're just trying to help Josh get out of a bad situation, and you can help him. You just need to bear witness to the fact that this guy started issues with you first, then started issues with Josh. And then Josh is good to go.' I will be out of here, you know? [¶] MALE: Um-hmm. [¶] J. VINYARD: If he can come and testify in court that -- you know, that's the situation, I'll be gone. I'll -- I'll be, 'Ha, ha,' skippity doo back to what I need to be doing, you know?"
Defendant did not testify at trial.
Defendant contends trial counsel was incompetent because he needlessly revealed during voir dire that defendant had a prior conviction for child molestation. This claim is frivolous.
We recently summarized the applicable rules regarding claims of incompetent counsel as follows:
"Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right 'entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.] '"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof."' [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.) We also cautioned that "'[a] reviewing court will not second-guess trial counsel's reasonable tactical decisions'" and that an appellant bears the burden to explain exactly how trial counsel's actions fell below professional norms and how they caused prejudice. (Id. at p. 467.) And if the record on appeal does not foreclose a rational tactical purpose in trial counsel's actions, a claim of incompetent counsel will be rejected. (See People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Before voir dire, the trial court ruled defendant's prior conviction for child molestation could be used to impeach him, and it was understood defendant planned to testify.
During voir dire, trial counsel represented that defendant would testify and had a prior conviction for child molestation after an arrest for "having sex with a 13[-]year[-]old girl." Trial counsel identified the crime as a violation of section 288, subdivision (a), and read that statutory provision. He then asked prospective jurors whether any of them "cannot set aside the fact that he has a prior record and judge these facts in this case independently?" One juror expressed an inability to look beyond that conviction and was excused for cause.
Retained appellate counsel argues trial counsel was incompetent because he placed before the jury "highly prejudicial" information that "effectively poisoned the minds of the jurors." This contention is frivolous because no attorney familiar with the record and the relevant law would think it had any chance of success. (See People v. Craig (1991) 234 Cal.App.3d 1066, 1068 [whether a claim is arguable depends on the facts in the appellate record and on the relevant law].)
The record shows that at the time trial counsel acted, defendant planned to testify and the trial court had ruled the conviction would be used to impeach defendant. In the face of the trial court ruling admitting the prior for impeachment, trial counsel quite obviously sought to soften the blow by raising the point himself, and tried to minimize the harm to defendant by ascertaining during voir dire whether any juror would be unable to look beyond the conviction. Trial counsel's tactical decision proved wise, for it turned out one juror admitted an inability to do so and was excused.
Appellate counsel quibbles that trial counsel referred to the prior conviction as "having sex with a 13[-]year[-]old child" when the prior conviction was technically for lewd and lascivious conduct with a child under the age of 14. But trial counsel read the definition of the crime to the prospective jurors, and in any event, the crime had to involve some kind of lewd or lascivious contact with a child no older than 13, with a sexual intent. (See § 288, subd. (a).) It may be that appellate counsel is drawing a distinction between "sex," meaning intercourse, and other sexual conduct. However, sex is not ordinarily restricted to intercourse and commonly embraces a variety of conduct. Counsel's assertion that the statement "was factually inaccurate and of greater prejudicial effect" than the conviction, simpliciter, is not persuasive.
Appellate counsel also asserts that trial counsel "never called appellant to testify." This misleads. The record shows defendant changed his mind about testifying.
Up until late in the People's case, the prosecutor understood defendant was going to testify, as defense counsel had indicated several times. However, during a sidebar, defense counsel stated a concern about his ability to introduce photographs of defendant "because he wasn't sure if he was going to call his client." Based on this revelation, the prosecutor stated she wished to call some witnesses that she had been saving for rebuttal. The day after the People rested, defense counsel asserted that defendant was sick and he had not been able to go over defendant's proposed testimony with him, but the court declined to delay the trial. Then defense counsel indicated he would be calling an officer to impeach Acuna and the jury was brought in. Then the defense rested without calling any witnesses, catching the trial court by surprise. Outside the presence of the jury, defense counsel stated: "This decision of my client not to take the stand was a decision he reached right now, and it is his decision to do it."
Thus, contrary to appellate counsel's assertion, the record does not show trial counsel failed to call defendant to testify, it shows that, at the last minute, defendant changed his mind and exercised his personal privilege not to testify. (See People v. Carter (2005) 36 Cal.4th 1114, 1198.)
Appellate counsel also recasts the claim regarding revelation of the prior conviction to the prospective jurors as both the denial of a fair jury and a fair trial. However, as stated, on this record trial counsel properly raised the issue before the jury, and by doing so rooted out one juror who would not have listened to defendant's anticipated testimony with an open mind. Thus, counsel's actions helped ensure a fair trial, consistent with due process.
Appellate counsel cites authorities that state in some cases the introduction of prejudicial material may deny a defendant a fair trial or due process. For example, he relies on a child sexual assault case, in which a prospective juror who was a Child Protective Services worker stated during voir dire that in her experience all sexual assault claims had been confirmed and no child had lied about sexual assaults. (Mach v. Stewart (9th Cir. 1997) 137 F.3d 630, 631-633.) The Ninth Circuit presumed these comments tainted the jury pool. He also cites a case involving the introduction of irrelevant bad character evidence, where the Ninth Circuit reiterated that "'only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.'" (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384.)
These cases are unlike this case, where defense counsel merely told the jury pool defendant would be impeached with a prior molestation conviction. Defendant's cases do not hold or imply that a defendant cannot be impeached with a prior conviction for a heinous crime, nor that prophylactically revealing such a conviction in voir dire results in an unfair trial or denial of due process. (Cf. People v. Wilson (2008) 44 Cal.4th 758, 796-797 [rejecting claim that Evid. Code, § 1108 violates due process]; United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1025-1027 [upholding similar federal rule].) In the event, defendant did not testify, therefore the issue of his credibility--and the conviction's bearing thereon--never arose.
Finally, as the Attorney General points out, a defendant "cannot proceed with the jury selection . . . without objection, gamble on an acquittal, then, after [he is] convicted, claim for the first time the panel was tainted." (People v. Cleveland (2004) 32 Cal.4th 704, 736.) This provides yet another reason for rejecting the belated claims about voir dire.
II Appellate counsel contends trial counsel was incompetent because he did not ask the victim about gang tattoos. This claim is frivolous because it is based on speculation.
Acuna testified he was not a gang member but conceded he had "lots of kinds" of tattoos and displayed and described some to the jury. Appellate counsel asserts trial counsel should have pressed Acuna about his gang membership.
The manner of cross-examining a witness falls within a trial attorney's tactical choice. (People v. Frierson (1979) 25 Cal.3d 142, 158.) Trial counsel may have known that Acuna was not in a gang, or may have thought it best to leave the point alone. In the absence of any evidence in the record that Acuna was a gang member, there is no reason to suppose Acuna would have changed his testimony under cross-examination or that trial counsel could have proved he was a gang member.
Appellate counsel's argument rests on speculation that Acuna was a gang member, based on counsel's interpretation of a photograph of Acuna's hand in the record which shows a tattoo. However, there was no testimony at trial about the nature of that tattoo, expert or otherwise, and in the absence of such evidence we will not assume it meant Acuna was a gang member, as does appellate counsel. Therefore we cannot presume on this record that trial counsel acted below professional norms.
Further, even if Acuna was a gang member, there is no reason to think the outcome would have changed. As counsel argues, street gangs are condemned and Acuna appeared to have a propensity to fight, but there was abundant evidence in the record showing that defendant attacked Acuna without warning and viciously beat him. The failure to articulate prejudice also defeats the claim of incompetence of counsel. (See People v. Mitchell, supra, 164 Cal.App.4th at pp. 466-467.)
III As indicated, the trial court ruled the People could impeach defendant with his prior molestation conviction. On appeal, defendant attacks this ruling.
This contention is frivolous. A defendant who does not testify cannot challenge a ruling admitting impeachment evidence. (People v. Ledesma (2006) 39 Cal.4th 641, 731; People v. Collins (1986) 42 Cal.3d 378.) Appellate counsel provides no argument why this rule should not apply, and we see none.
IV Defendant contends the prosecution team committed discovery violations. The record belies this contention.
The People moved in limine to preclude impeachment of Acuna absent an offer of proof, and represented that his only prior was a misdemeanor vehicle theft in Los Angeles in 2005. The People also represented: "Defense counsel has mentioned that he believed Victim is a Sureno gang member, and has questioned whether Victim had warrants cleared in Los Angeles." The People argued that warrant status did not show a readiness to do evil, and that the defense had not disclosed evidence that Acuna was a gang member. After the trial court ruled Acuna could be impeached with the vehicle theft conviction, trial counsel stated he did not intend to introduce gang evidence, but wanted to ask prospective jurors whether they would assume that two or three men acting together "might be some sort of gang" or would "consider that a gang." Absent gang evidence, the trial court ruled the issue was moot, and trial counsel agreed.
On appeal, appellate counsel asserts the prosecutor failed to disclose the fact that Acuna was a gang member, as evidenced by his gang tattoos. Counsel concedes the photograph he claims shows Acuna's gang tattoo was disclosed. However, he asserts that particular tattoo is a gang tattoo and speculates it is "highly unlikely" that the prosecution team did not know this, yet the prosecutor failed to disclose that knowledge.
The prosecutorial team has a duty to disclose material exculpatory evidence to the defense, including impeachment evidence. (See People v. Jordan (2003) 108 Cal.App.4th 349, 358-359.) Even if this rule would apply to an opinion about the nature of a tattoo, defendant has not demonstrated that Acuna had any gang tattoos or gang connection, as explained above. (See part II, ante.) Therefore, this contention is baseless.
Appellate counsel separately contends the prosecutor committed another discovery violation regarding recordings of Acuna and defendant speaking to the police. This contention, too, is baseless.
Defense counsel represented that before the lunch break on the first day he learned "there was a tape that was recorded while the police officers were in the hospital with both my client and Mr. Acuna, who were in the same room." The prosecutor represented that the prior prosecutor had discovered that recording to the prior defense counsel, and noted that the police report, which had been discovered, referred to the recording. The trial court noted that if defense counsel had not received the recording, he had been on notice of its existence before trial, yet did nothing. The trial court directed the prosecutor to make sure the defense had a copy. At the beginning of the second day of trial, it developed that the recording had been previously delivered to prior defense counsel, but the prosecutor also delivered another copy to new trial counsel "along with the transcripts, so he has both of them now." Defense counsel agreed the issue was resolved, but later complained that the recording was marked "Vinyard" but it also contained an interview of the victim Acuna. Defense counsel conceded the recordings had been discovered to the public defender but had not been transferred after defendant retained counsel, and he eventually agreed with the trial court that there was no discovery problem.
Thus, trial counsel received the material he wanted, conceded it had been disclosed to his predecessor, and stated on the record there was no discovery problem. It appears the public defender's office may have failed in its duty to forward material to new trial counsel, but the record shows no failings by the prosecutorial team regarding the recording.
V Defendant contends no substantial evidence shows defendant used force likely to cause great bodily injury.
"We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) "Evidence is sufficient to support a conviction only if . . . it '"reasonably inspires confidence"' [citation], and is 'credible and of solid value.'" (People v. Raley (1992) 2 Cal.4th 870, 891.)
"Section 245, subdivision (a)(1), punishes assaults committed by the following means: 'with a deadly weapon or instrument other than a firearm,' or by 'any means of force likely to produce great bodily injury.' One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] That the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
The testimony varied, but not by much. Shadd testified Acuna was standing calmly when defendant attacked him and then drove his head through the window. Defendant's former friend Mertz testified defendant was "fired up" and Mertz told the 911 operator defendant was beating the victim up. Slagter testified Acuna seemed confused when defendant attacked him, and saw defendant punch Acuna's head against the window, causing it to go through. An officer testified Slagter reported defendant slammed Acuna's head on the window, which shattered the second time he did this. Acuna testified defendant attacked him, shoved his head through the window, and continued to hit him.
In a case where the evidence showed the victim was shoved into a parking meter, the court upheld a conviction of assault by means likely to cause great bodily injury: "The evidence for the prosecution showed a vicious attack, with unnecessary force, and without any reasonable provocation. The evidence for the appellant disclosed an attack with a degree of force entirely uncalled for, and with no provocation worthy of the name. The evidence was sufficient to sustain the implied finding that the force used was one which was likely to produce great bodily injury." (People v. Conley (1952) 110 Cal.App.2d 731, 737.) Other cases have also upheld convictions for assault likely to cause great bodily injury that involved a similar amount of force used in this case. (See People v. Roberts (1981) 114 Cal.App.3d 960, 965 ["kicking on the head and torso of a largely defenseless man on the ground"]; People v. McDaniel (2008) 159 Cal.App.4th 736, 749 [repeatedly punching "the head and upper body with closed fists"].)
Viewed in the light favorable to the verdict, the evidence recounted above amply supports the conviction for assault by means likely to cause great bodily injury. Appellate counsel merely reargues the facts and construes discrepancies or draws inferences favorable to defendant. We decline the invitation to reweigh evidence. (People v. Jones (1990) 51 Cal.3d 294, 314; Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)
VI Conduct Credits
We deem defendant to raise the issue whether recent statutory amendments would increase his presentence conduct credit award. (Misc. order No. 2010-002.) However, the jury found defendant personally inflicted great bodily injury, making this a violent felony. (§§ 667.5, subd. (c)(8), 12022.7, subd. (a).) Therefore, as the trial court found, defendant was limited to accruing 15 percent conduct credits. (See § 2933.1.)
The judgment is affirmed.
We concur: ROBIE ,J. BUTZ ,J.