(Super. Ct. No. 07F06756)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Neng Saypao Pha was charged with eight crimes against his wife: (1) assault with a firearm (count one); (2) inflicting corporal injury (counts two, six, and eight); (3) making a criminal threat (counts three and seven); (4) false imprisonment (count four); and (5) dissuading a witness (count five).
The jury found defendant guilty of one count of inflicting corporal injury (count two), one count of making a criminal threat (count three), and the false imprisonment charge (count four). It deadlocked on the charge of assault with a firearm and one count of inflicting corporal injury. The jury found defendant not guilty of the charge of dissuading a witness, one count of inflicting corporal injury, and one count of making a criminal threat. The jury also found that defendant personally used a firearm in committing counts three and four. The trial court sentenced defendant to an aggregate term of 15 years in prison.
On appeal, defendant raises varies claims of error, but we find no merit in any of them. Accordingly, we affirm.
For our purposes, it is sufficient to summarize the evidence underlying the three charges on which the jury found defendant guilty, with particular emphasis on the charge of false imprisonment.
The victim testified that on July 9, 2007, she and defendant were home alone in their two-bedroom, two-bath mobile home. While she was sitting on the couch, the victim heard defendant on the telephone in their bedroom telling his sister-in-law that the victim was having an affair and he did not want to be married to her anymore. When she heard that, the victim went to the bedroom door and asked defendant why he had said that, but he did not respond. She then said, "'If there's something you do not agree with, can we go talk to our elder?'"
When the victim turned around and started walking back to the couch, defendant came up behind her and hit her on the arm and then the leg with a folding chair. She fell to the floor, and defendant grabbed her by the hair. When she stood up, he pulled her by her hair into the bedroom. There, he threw her down on the bed repeatedly, then flipped her onto her back and choked her. He then put his hands over her mouth.
Eventually, defendant went to the closet and retrieved a gun. He put the gun to the victim's head and told her he was going to shoot her, and she grabbed his arm and said, "Stop, stop." After they struggled for a while, defendant grabbed her by the hair again and pulled her into the bathroom.
Once they were inside, he shut the door. When she tried to open it, he hit her arm, grabbed her by the hair, and threw her to the floor three or four times, then pushed her face down on the floor. He pressed his knee against her back, reached into the cabinet under the sink, and pulled out the clothes iron. He then tried to tie her hands behind her back with the iron cord. The victim managed to get the iron away from him, and he grabbed her by the hair again and made her sit on the toilet. He sat on the sink across from her and continued to point the gun at her and told her he was going to kill her.
Eventually, defendant grabbed the victim by her hair again, threw her to the floor, and tried to tied her up again with the iron cord. She got the iron away from him again and threw it in the shower stall, then fought with him as he tried to open the shower door to retrieve the iron. After she managed to keep the shower door closed by putting her head against it, defendant grabbed a rope from under the sink and tried to tie her up again. They fought over the rope for awhile, with the victim grabbing it and throwing it in the garbage and defendant retrieving it and trying to tie her up with it again. All the while, defendant had the victim pinned to the floor with his knee.
Ultimately -- apparently because it was very hot in the bathroom -- defendant went out and turned on the air conditioner. The victim followed him out of the bathroom, but in the bedroom he told her to stop, and he closed the bedroom door. He then grabbed her by the hair again, threw her on the bed, and choked her for "[a] long time." After he covered her mouth again, he eventually sat up on the bed, although he continued to point the gun at her. He made her sit on the floor next to the bed, then told her to crawl and kneel in front of him. As she knelt before him, she begged for her life, and he told her not to tell anyone what he had done to her. The incident finally ended when their daughter called defendant's cell phone and he answered. When the daughter asked to speak with the victim, defendant passed the phone to her, and the victim told the daughter that she and her husband needed to come over, which they did.
Testifying in his own defense, defendant claimed that on July 9 he and the victim argued in the living room, and he hit her in the leg with a stool. He then went to the bedroom, and she followed him. At one point, he put his hand on her face to get her to stop talking, then pushed her on to the bed and told her to stay put there. He went into the bathroom with the gun, while she remained in the bedroom. She eventually came into the bathroom, and he left and sat on the floor in the bedroom, which is where he was when their daughter called.
In closing argument, the prosecutor asserted that defendant was guilty of false imprisonment because "on July 9th . . . he forc[ed] [the victim] to stay inside the house, . . . dragg[ed] her around and t[ook] her from room to room." The prosecutor later argued that the entire event, from when defendant first grabbed her by the hair, constituted the false imprisonment, because "[t]he entire thing [wa]s against her will" and "done by violence or menace."
Defense counsel argued that the victim's version of the events on July 9 was "bizarre and untrue" and there was "no credible evidence to support th[at] false imprisonment occurred."
Evidence Of Uncharged Misconduct
Defendant was charged in count six with inflicting corporal injury on the victim for an incident that occurred on or about December 1, 2006. This was the earliest incident alleged in the information.
The victim testified she "started spending [her] life with" defendant in 1981 and throughout their relationship he was "always hitting [her], yelling at [her]." The prosecutor then told the victim he "want[ed] to ask [her] specifically some questions about December 1st of 2006." In response to those questions, the victim testified she took some photographs of herself on December 2, 2006 "[b]ecause in the middle of the night at about 4:00 in the morning, [she] was . . . beaten" by defendant. When the prosecutor asked her "what started the whole thing," the victim explained that defendant wanted to "sleep with" her and "took some medication so that his item would be very hard." She then testified that defendant "poked the thing in [her] mouth, [her] nose, [her] face, all over," and she "did not agree to it . . . . He forced [her], to do things to [her]." "When [she] refused, he tried to open [her] mouth by force so he could stick it in. He treated [her] like an animal. He sat on [her] chest." When the prosecutor asked if she had "ever talked about this before," the victim responded, "Who would I talk with? Anybody [who] I have talked with, he would probably beat me up until I died, so I would not talk with anybody." She then admitted she discussed "this aspect of this incident" one day with one of her daughters.
Defense counsel did not object to any of the foregoing testimony. On appeal, however, characterizing the conduct the victim described as rape, defendant contends the trial court erred in admitting evidence of this rape to prove the fear element of the crime of making a criminal threat.
The People contend defendant forfeited any challenge to the admission of this rape evidence by failing to object to the evidence in the trial court. We agree. "A verdict . . . shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353.)
Defendant contends that, in limine, his trial attorney "objected to the admission of all the uncharged misconduct evidence." (Italics added.) Not so. In his trial brief, the prosecutor moved to admit two specific incidents of prior domestic violence, one in 1997 and another in 2002, as propensity evidence under Evidence Code section 1109. In arguing that issue, the prosecutor explained that even if the court would not admit those incidents to show propensity under Evidence Code section 1109, he would seek "to introduce all the violence in their relationship, including these two situations" to establish the fear element of Penal Code section 422. When the trial court asked defense counsel if he wanted to be heard on the matter, counsel argued only that the two "specific items that are in the brief" should be excluded.
In asserting on appeal that his trial attorney "objected to the admission of all the uncharged misconduct evidence," defendant cites only that portion of the reporter's transcript in which defense counsel argued that the two specific incidents the prosecutor addressed in his trial brief should not be admitted. Clearly this was not an objection to "all the uncharged misconduct evidence." Because defendant has not shown that he objected to "all the uncharged misconduct evidence," let alone to the "rape" evidence relating to the December 1, 2006 incident, he cannot be heard to argue on appeal that the trial court erred in admitting that evidence. (See Evid. Code, § 353, subd. (a).)
In a cursory fashion, defendant argues that if his objection to the "rape" evidence was forfeited, "this amounted to ineffective assistance of counsel" because his trial attorney's failure to object to this evidence "could not have been a matter of tactics." The People disagree, arguing that defense counsel may have "tactically chose[n] not to challenge admissibility of [the victim]'s testimony concerning the December 2006 sexual assault" so that he could "use [her] failure to mention that evidence to police, the district attorney and even her doctor to impeach her."
When a claim of ineffective assistance of counsel is raised on direct appeal, and "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged," "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the ineffective assistance claim must be rejected because "[o]therwise, appellate courts would become engaged 'in the perilous process of second-guessing.'" (People v. Pope (1979) 23 Cal.3d 412, 426.)
Defendant's position here is that there could be no satisfactory explanation for his trial attorney's failure to object to the "rape" evidence. He contends the "tactical reason" posited by the People "was not . . . valid" because "[d]efense counsel already had ample opportunity to cross-examine [the victim] about why she had not mentioned to the police (and to her private doctor) various prior acts of domestic violence" and therefore "[t]he fact that [the victim] had not mentioned the prior rape added nothing to counsel's impeachment of the witness."
Defendant fails to support this argument by any citation to the record showing where defense counsel cross-examined the witness on her failure to mention other prior acts of domestic violence to the police and/or her doctor. In any event, by offering this argument, defendant is simply asking us to do what the Supreme Court cautioned against in Pope -- engage in the perilous process of second-guessing the decisions of defense counsel. Defense counsel could have chosen not to object to the rape evidence because he believed the victim's failure to mention the rape at all -- except on one occasion to one of her daughters -- in the more than three years that elapsed between the incident (in December 2006) and the trial (in January 2010) would be highly damaging to her credibility -- more so than any of the other incidents of domestic violence she may have failed to mention. Because on direct appeal we cannot eliminate this as a potentially valid tactical decision defense counsel might have made, defendant's ineffective assistance of counsel claim lacks merit.
Duration And The Crime Of False Imprisonment
The trial court instructed the jury on the crime of false imprisonment pursuant to CALCRIM No. 1240, as follows:
"The defendant is charged in Count 4 with false imprisonment by violence or menace in violation of Penal Code Section 236.
"To prove the defendant is guilty of this crime, the People must prove that one, the defendant intentionally restrained, confined, or detained someone, or caused that person to be restrained, confined, or detained by violence or menace.
"And two, the defendant made the other person stay or go somewhere against the person's will. Violence means using physical force that is greater than the force reasonably necessary to restrain someone.
"Menace means a verbal or physical threat of harm, including use of a deadly weapon. The threat of harm may be express or implied.
"An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and ...