Opinion
D058310 Super. Ct. No. SCE290607 D059781
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS KEELER BARRY, Defendant and Appellant. In re THOMAS KEELER BARRY on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Petition for writ of habeas corpus. Judgment affirmed in part, reversed in part. Petition for habeas corpus denied.
In this consolidated appeal and original proceeding seeking a writ of habeas corpus, Thomas Keeler Barry challenges the judgment entered after a jury found him guilty of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury also found true the allegation that Barry personally used a firearm in the commission of each offense. (§ 12022.5, subds. (a), (d).) The trial court sentenced Barry to an aggregate term of six years in prison.
Subsequent undesignated statutory references are to the Penal Code.
In the appeal, Barry contends the trial court erroneously excluded evidence, committed misconduct, and abused its discretion in sentencing by denying probation. He also contends the convictions of assault with a semiautomatic firearm bar the convictions of assault with a firearm, because assault with a firearm is a lesser included offense of assault with a semiautomatic firearm. Finally, Barry and the People both contend the abstract of judgment must be amended because it does not correctly state the sentence the trial court imposed.
In the writ proceeding, Barry contends his trial counsel provided ineffective assistance by not interviewing or summoning witnesses who allegedly would have corroborated Barry's testimony at trial. He also complains counsel provided ineffective assistance by postponing and inadequately preparing for trial.
We reverse the convictions of assault with a firearm, order the abstract of judgment corrected to delete those convictions and to reflect the sentence actually imposed by the trial court, and otherwise affirm the judgment. We deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
Barry applied for membership in the Veterans of Foreign Wars ("VFW"), and his application was scheduled for a vote. Barry went to the VFW hall in El Cajon the afternoon the vote was to occur and sat at the bar drinking beer while he waited for the decision on his application. The bartender overheard Barry making vulgar remarks to another customer, who got up and left. The bartender served Barry another beer and told him he would have to leave after finishing the beer because he was upsetting customers. Barry took the beer and went outside to the patio.
About two-and-a-half hours later, Barry returned to the bar and ordered another beer. The bartender told Barry she was not going to serve him again, and he asked why. Before the bartender could answer, a VFW officer, Larry Wyatt, approached and told Barry he had not been accepted as a member and was going to have to leave the premises. Barry asked Wyatt to step outside onto the patio to discuss the matter.
Wyatt and Barry sat down at a table, and Wyatt explained that Barry's membership application was denied because his "actions were not what [the VFW] wanted there." When Wyatt told Barry he had to leave, Barry started "using a lot of cuss words and things" and refused to depart. The bartender asked William Havrilla to check on Wyatt, and Havrilla went out to the patio. Havrilla stood over Barry and told him that he was making people nervous and had to leave the premises. When Barry got up and refused to leave, Havrilla escorted him to the parking lot and then returned to the VFW hall.
While in the parking lot, Barry became more disruptive, shouting out Wyatt's first name repeatedly and "also talking about how he [i.e., Barry] killed people in Vietnam." Havrilla went back to the parking lot, and Wyatt followed. Havrilla again instructed Barry to leave the premises and threatened to call the police if he did not. Barry suddenly "pulled a gun out of his pocket in his right hand"; "said, 'What do you think about this?' "; and fired a shot over Havrilla's left shoulder. Barry then pointed the gun at Wyatt and threatened to kill him. Eventually, Barry got into his car and drove off.
The police were summoned, and Officer Keith MacArthur and his partner arrived to investigate. In the parking lot, Officer MacArthur found a shell casing from a .25 caliber semiautomatic gun.
The following day, Barry gave his trial counsel a .25 caliber semiautomatic handgun, which was the gun he had used to shoot at Havrilla. Counsel turned the gun over to Detective Darrin Forster. Barry also turned himself into the police. B. The Defense Case
Barry asserted self-defense at trial, testifying to the following series of events:
Barry went to the VFW hall on the evening of the vote on his membership application and ordered a beer at the bar. The bartender told him that she could not serve him because his application for membership had been denied. Wyatt then appeared, told Barry he had been denied membership, and returned Barry's application fee. Barry asked Wyatt to go outside to the patio area to discuss the matter. They exited the bar area and sat at a table outside the VFW hall.
While Barry and Wyatt were out on the patio discussing the VFW's decision to deny Barry's membership application, Havrilla came up from behind and started pushing Barry on the shoulders. Havrilla told Barry, "Your membership has been voted down. You got to go." When Barry protested, Havrilla kept on pushing him and telling him to leave.
Barry then stood up from the table and said he was leaving, and Havrilla grabbed him and pushed him toward the patio gate. As Havrilla continued to push Barry intermittently as they proceeded out into the parking lot, Barry called out to Wyatt, "Larry, Larry, what is this? . . . Get the big guy off of me." Wyatt did not respond.
When Barry and Havrilla got to the parking lot, Havrilla gave Barry "a big shove with both hands low on the back." Barry felt like he "was being led to [his] execution"; "was very alarmed for [his] safety"; and feared that "a beating was going to ensue, probably, if [they] continue[d] on to [his] car." Barry spun around suddenly, pulled out a gun, and pointed it at Havrilla. Havrilla lunged at Barry, who fired a "warning shot" at Havrilla. Havrilla then ran and hid behind a car; and Barry twice issued the following "proclamation to William Havrilla or anybody else who might be nearby": " 'I'm leaving. If you attack me, again, sir, I'm going to kill you.' " Barry then got into his car and drove off. C. Trial Court Proceedings
The People charged Barry with assault with a semiautomatic firearm on Havrilla and Wyatt (counts 1 and 3, respectively) (§ 245, subd. (b)), and assault with a firearm on Havrilla and Wyatt (counts 2 and 4, respectively) (§ 245, subd. (a)(2)). As to each count, the People alleged Barry personally used a firearm. (§ 12022.5, subds. (a), (d).)
The jury returned verdicts of guilty on all four counts. The jury also found true the allegation that Barry personally used a firearm in the commission of the four offenses.
The trial court sentenced Barry to prison for an aggregate term of six years. For the conviction on count 1 (assault with a semiautomatic firearm on Havrilla), the court sentenced Barry to prison for three years, plus a consecutive term of three years for the firearm enhancement. (§§ 245, subd. (b), 12022.5, subds. (a), (d).) For the conviction on count 3 (assault with a semiautomatic firearm on Wyatt), the court imposed a concurrent sentence of six years. (See part II.E., post.) The court ordered the sentences for the convictions on counts 2 and 4 stayed pursuant to section 654.
DISCUSSION
A. The Trial Court Did Not Violate Barry's Constitutional Right to a Fair Trial by Erroneously Excluding Evidence of Havrilla's History of Violent Conduct
Barry contends the trial court's exclusion of evidence that Havrilla attacked a former girlfriend denied him the opportunity to present a defense, in violation of his constitutional rights. According to Barry, such evidence was critical to his core claim of self-defense and its exclusion denied him a fundamentally fair trial, requiring reversal. After setting forth additional pertinent facts, we shall explain why we reject this contention.
1. Additional Facts
Barry moved in limine for an order allowing him to introduce evidence regarding Havrilla's violent character. Barry sought to present such evidence through the testimony of a police officer who took statements from Havrilla and a former girlfriend after an incident in which Havrilla allegedly came home drunk, shoved and choked the former girlfriend, and then punched her in the face. According to Barry's trial counsel, the former girlfriend was reluctant to testify and did not want to come in, but in any event, any statement she made to the police officer that night would be subject to the spontaneous statement exception to the hearsay rule. (See Evid. Code, § 1240.)
The People objected that such evidence would be more prejudicial than probative. (See Evid. Code, § 352.) According to the People, Havrilla told the police officer that the former girlfriend was the aggressor and that she had punched him in the face. The People stated that Havrilla's injuries were more consistent with the former girlfriend having been the aggressor. The People further represented that although the matter had been submitted to the district attorney's office, the district attorney declined to prosecute.
In denying Barry's in limine motion to present evidence of Havrilla's violent character, the trial court stated "the People are at a complete disadvantage because they don't have a shot at the girlfriend to ask her anything" and the police officer's testimony would be "just too unreliable."
Barry renewed his motion at trial, during the People's examination of Havrilla. The trial court again denied the motion.
2. Legal Analysis
In a criminal case, a defendant may introduce evidence of the character or a trait of character of a victim, in the form of opinion, reputation, or specific instances of conduct, to prove conduct of the victim in conformity with the character or trait of character. (Evid. Code, § 1103, subd. (a)(1).) Thus, a defendant being prosecuted for a violent offense who asserts self-defense may introduce evidence of specific violent acts by the victim on a third person to show that the victim has a violent character and was the aggressor in the current offense. (People v. Wright (1985) 39 Cal.3d 576, 587 (Wright); People v. Tackett (2006) 144 Cal.App.4th 445, 453-454; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446 (Shoemaker).)
"The admission of such character evidence, however, is not without bounds, but is subject to the dictates of Evidence Code section 352." (Wright, supra, 39 Cal.3d at p. 587.) That section permits a trial court to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (Evid. Code, § 352.) We review trial court rulings under Evidence Code section 352 using the deferential abuse of discretion standard. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).) As we shall explain, the trial court did not abuse its discretion here.
The testimony which Barry sought to introduce from the police officer about Havrilla's attack on a former girlfriend was only minimally probative of Havrilla's character for violence. Even if we were to assume the statements of the former girlfriend taken down in the police officer's report meet the requirements for admissibility under the spontaneous declaration exception to the hearsay rule (Evid. Code, § 1240), those statements relate to an uncharged offense and would therefore be admissible "only if they have substantial probative value." (People v. Thompson (1980) 27 Cal.3d 303, 318 (Thompson).) The principal factor affecting the probative value of an uncharged prior act in proving a victim's violent character is its similarity to the act at issue in the current case. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211; Shoemaker, supra, 135 Cal.App.3d at p. 450.)
For a statement to be admissible under the spontaneous declaration exception, (1) there must be some occurrence startling enough to produce nervous excitement and render the statement spontaneous and unreflecting; (2) the statement must have been made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the statement must relate to the occurrence preceding it. (People v. Poggi (1988) 45 Cal.3d 306, 318.)
Here, as to the prior incident, Havrilla was allegedly drunk when he came home and shoved, choked, and punched a former girlfriend. As to the current incident, there was no testimony that Havrilla knew Barry; that Havrilla was drunk; or that Havrilla choked, punched, or did anything more than push Barry while escorting him to the parking lot of the VFW hall. The lack of similarity between the two incidents renders the former girlfriend's statement to police of little probative value as to Havrilla's character for violence, especially since Havrilla gave a conflicting statement to the police officer. (See Shoemaker, supra, 135 Cal.App.3d at pp. 445, 450 [trial court did not abuse discretion in ruling evidence of victim's attack on strangers in nondomestic context was so different from victim's alleged attack on defendant in domestic context that its probative value was " 'relatively slight' "].) Thus, the testimony from the police officer that Barry sought to introduce had little tendency to prove that Havrilla was the aggressor in his encounter with Barry at the VFW hall.
Furthermore, testimony about Havrilla's alleged attack on a former girlfriend would have had no tendency to prove Barry believed he needed to defend himself against imminent injury from Havrilla. "For self-defense, the defendant must actually and reasonably believe in the need to defend, the belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury." (People v. Lee (2005) 131 Cal.App.4th 1413, 1427.) Thus, in a prosecution for assault where a defendant asserts self-defense, evidence that the defendant knew the victim had a reputation for violence is relevant to the issue of apprehension of danger. (People v. Brophy (1954) 122 Cal.App.2d 638, 647-648.) The record here indicates, however, that Havrilla never met Barry until the day of the shooting; and there was no evidence of any prior animosity between the two. There also was no evidence that Barry knew, at the time of the shooting, that Havrilla had a reputation for violence or previously had attacked a former girlfriend. Without such evidence, the testimony from the police officer that Barry sought to introduce could not have helped prove that Barry actually or reasonably believed he needed to defend himself against imminent danger of death or great bodily injury when he fired the "warning shot" at Havrilla. (See People v. Thomas (1969) 269 Cal.App.2d 327, 329 [evidence of victim's pugnacious character properly excluded when no evidence defendant asserting self-defense was aware of earlier fights involving victim].)
On the other hand, there was significant potential for undue prejudice to the People by introduction of testimony about Havrilla's alleged attack on his former girlfriend. Our Supreme Court has recognized that evidence of prior offenses is inherently prejudicial when introduced against a defendant (People v. Ewoldt (1994) 7 Cal.4th 380, 404; Thompson, supra, 27 Cal.3d at p. 318), and that evidence of prior offenses committed by a victim would be detrimental to the prosecution in the same manner in which evidence of prior offenses is prejudicial when introduced against a defendant (Wright, supra, 39 Cal.3d at p. 587; see also Shoemaker, supra, 135 Cal.App.3d at p. 448 [prosecution accorded same protection as defense against prejudicial evidence with little probative value]). This prejudicial effect is heightened where, as here, the prior misconduct went uncharged and thus did not result in a criminal conviction. (Ewoldt, at p. 405.) We therefore conclude the trial court did not err in excluding the evidence that Barry sought to introduce about Havrilla's character for violence under Evidence Code section 352, because the evidence was more prejudicial than probative.
Evidence is prejudicial within the meaning of Evidence Code section 352 if it tends to evoke an emotional bias against a person or to cause the jury to prejudge a person or cause on the basis of extraneous factors. (People v. Cowan (2010) 50 Cal.4th 401, 475; see also People v. Kelly (1992) 1 Cal.4th 495, 523 ["The court is not required to admit evidence that merely makes the victim of a crime look bad."].)
Moreover, introduction of the statements that Havrilla's former girlfriend made to the police officer after Havrilla allegedly attacked her would have "increased the likelihood of 'confusing the issues' (Evid. Code, § 352), because the jury [would have] had to determine whether the uncharged offense[] had occurred." (Ewoldt, supra, 7 Cal.4th at p. 405.)
Finally, we reject Barry's contention that the trial court's exclusion of testimony concerning Havrilla's alleged attack on a former girlfriend "denied [Barry] a fundamentally fair trial compelling reversal." We, of course, agree that Barry has a due process right to present evidence material to his defense, so long as the evidence is of significant probative value. (Shoemaker, supra, 135 Cal.App.3d at p. 450.) But he "has no constitutional right 'to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.' " (Shoemaker, at p. 450.) Indeed, our Supreme Court has held that a trial court's "application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [to present a defense]." (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on unrelated grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Accordingly, because the character evidence proffered by Barry had very little probative value but significant potential for undue prejudice to the People, the trial court's application of Evidence Code section 352 to exclude the evidence did not violate Barry's constitutional rights. B. No Judicial Misconduct Requires Reversal
Barry argues the judgment must be reversed because multiple instances of bias and misconduct by the trial court denied him a fundamentally fair trial. Specifically, Barry contends the trial court: (1) allowed the jury to interrupt and ask questions verbally of the court and witnesses; (2) frequently engaged in discussions with witnesses and the jury regarding the evidence and how it should be interpreted; and (3) exhibited an antagonistic attitude toward the defense. We will set forth additional facts describing the events of which Barry complains and then explain why they do not amount to judicial misconduct warranting reversal.
1. Additional Facts
a. The Trial Court's Interactions with Jurors
During the testimony of Officer MacArthur, the trial court received a note from a juror requesting an explanation as to how the casing from Barry's gun ended up where Officer MacArthur found it. After Officer MacArthur had been examined and cross-examined but while he was still on the stand, the court spoke with the juror, who said she wanted to know how far away from the site where a gun is fired a casing typically lands. The court informed the juror that Officer MacArthur was not qualified to answer that question, that no ballistics studies had been done on Barry's gun, that every gun is different, and that it was up to the jury to determine whether the casing was found where it originally landed. The court then asked counsel whether they had any more questions for Officer MacArthur, and they both said no.
After Detective Forster testified and the trial court excused him, but before he actually left the stand, a juror asked a question about the location of the ejection port on the gun. The court admonished the juror not to blurt out questions; Detective Forster explained that "the casing is unpredictable as to exactly where that casing is going to go"; and the court clarified that no ballistics studies were done on Barry's gun. An alternate juror then asked whether Barry's gun was "double action." The court sought clarification of the question, and Detective Forster said he did not know. The court then allowed further questioning from counsel.
At the conclusion of Detective Forster's testimony, the court informed the jury that it would provide instructions on what the law considers a firearm and a semiautomatic firearm. A juror asked whether the court would also provide instructions on the legal definition of assault and self-defense, and the court said that it would do so.
The jurors asked and the trial court answered other questions later in the trial. For example, at the close of the People's case, a juror inquired whether the casing was an exhibit, and the court responded that it had not been offered as an exhibit. At the close of the defense case, a juror sent the court a note asking when Barry removed the gun and why Havrilla did not observe the removal. The court did not respond because all of the evidence had already been admitted. After closing arguments, a juror asked the court what the difference was between the assault with a firearm charges and the assault with a semiautomatic firearm charges and whether self-defense applied to both. The court explained the difference between the charges and advised that self-defense applied to all charges. Finally, immediately before the jury commenced deliberations, a juror asked whether the jury had access to certain pretrial testimony, and the court answered no.
b. The Trial Court's Interactions with Barry and His Trial Counsel
During the direct examination of Barry, the People at several points objected that he was giving nonresponsive or narrative answers and offering irrelevant information. The court instructed Barry to limit his answers to the questions asked but agreed to give him "some leeway." Later, during a break and out of the presence of the jury, the court advised Barry that his "answers ramble on and on and they're not responsive whatsoever" and instructed him to answer the question asked and "don't embellish it with your life's history."
After the People objected to an answer from Barry as nonresponsive, the following colloquy occurred between the trial court and Barry's counsel:
"[Counsel]: Oh, come on, Your Honor.
"The Court: Wait, I didn't object . . . . First of all, when you say 'Come on, Your Honor,' the objection came from counsel.
"[Counsel]: Very well.
"The Court: The objection is well taken as a continuing ongoing problem that we have been having. The objection is sustained.
"[Counsel]: Your Honor, with all due respect, the witness should be able to explain himself.
"The Court: Absolutely, but he also has an obligation to answer your question . . . he cannot narrate."
During closing arguments, Barry's counsel attempted to argue the elements of assault, specifically the element pertaining to application of force to a person and whether an actual touching was required. The court advised the jury to rely on the instructions and commented that Barry's counsel's argument was misleading because it implied that the People had to prove Barry actually touched someone else. Barry's counsel disagreed and requested a sidebar. The court denied the request. Barry's counsel continued to express disagreement with the court as to whether the People had to prove that Barry actually touched someone else to prove assault. Counsel stated he was "fighting for [his] client," and that he had "a right to present [his] side of the case." The trial court noted the disagreement and instructed Barry's counsel to proceed with his argument or it would be terminated. When Barry's counsel later objected to the prosecutor's argument that an assault did not require contact with another person, the trial court overruled the objection and instructed the prosecutor to proceed with her argument.
The trial court was correct that the People did not have to prove Barry actually touched someone else for the jury to find him guilty of assault. "[B]ecause Penal Code section 245 'focuses on use of a[n] . . . instrument . . . , whether the victim in fact suffers any harm is immaterial.' [Citation.] Thus, to avoid any possible juror confusion, it was appropriate for the instruction to clarify that proof of an actual touching, injury, or intent to injure was not essential to support a conviction of this offense." (People v. Flores (2007) 157 Cal.App.4th 216, 221.)
2. Legal Analysis
As an initial matter, claims of judicial misconduct or intemperance generally are not preserved for appellate review unless objections were made on those grounds at trial. (E.g., People v. McWhorter (2009) 47 Cal.4th 318, 373 (McWhorter); People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm); People v. Snow (2003) 30 Cal.4th 43, 77-78.) Also, "a judge's examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred." (People v. Corrigan (1957) 48 Cal.2d 551, 556.) Barry's failure to object at trial therefore forfeits on appeal his claims of judicial misconduct. "Nevertheless, because [Barry] contends that [trial counsel's] failure to object and seek curative jury admonitions constituted ineffective assistance of counsel [citations], we address the merits of his claim of error." (People v. Chong (1999) 76 Cal.App.4th 232, 243 (Chong).)
The legal principles we must apply in reviewing the merits of Barry's claim of judicial misconduct are well established. A trial judge has a duty to control trial proceedings so that the evidence is fully developed, ambiguities and conflicts are resolved as far as possible, and the truth may be effectively ascertained. (§ 1044; People v. Carlucci (1979) 23 Cal.3d 249, 255 (Carlucci).) In the discharge of this duty, a trial judge may: (1) control the mode of questioning of witnesses to make questioning as rapid, distinct, and effective as possible (Evid. Code, § 765, subd. (a); Simpson v. Randolph (1956) 140 Cal.App.2d 571, 575-576); (2) examine witnesses to elicit or clarify testimony (People v. Rigney (1961) 55 Cal.2d 236, 241); (3) permit jurors to submit questions to be asked of witnesses (People v. Majors (1998) 18 Cal.4th 385, 406-407); (4) comment on the evidence, including the credibility of witnesses (People v. Melton (1988) 44 Cal.3d 713, 735 (Melton)); and (5) reprimand an attorney for improper behavior (Guerra, supra, 37 Cal.4th at p. 1111). In doing any of these things, however, the trial court must remain scrupulously fair; it may not disparage or discredit one party and ally itself with another; and it may not express its views on the ultimate issue of guilt or otherwise usurp the jury's role as the final arbiter of questions of fact. (Sturm, supra, 37 Cal.4th at pp. 1233, 1237-1238; People v. Sanders (1995) 11 Cal.4th 475, 531.)
"On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of ' "a fair, as opposed to a perfect, trial.(Guerra, supra, 37 Cal.4th at p. 1112.) "[T]he misconduct of a trial judge which will warrant a reversal of the judgment should be so definite and apparent as to leave little doubt that it has resulted in depriving the accused of a fair and impartial trial." (People v. Browning (1933) 132 Cal.App. 136, 153; accord, People v. Kendrick (1961) 56 Cal.2d 71, 92.) We find no such misconduct by the trial judge here.
As to the interactions of the trial court with both jurors and witnesses, it appears to us that the trial court's participation in the examination of witnesses invariably involved questions seeking to clarify the testimony of the various witnesses and to fully develop the pertinent facts. (People v. Raviart (2001) 93 Cal.App.4th 258, 270.) Indeed, the questions and comments from the jurors and the court expressly sought clarification of testimony and further information concerning the characteristics of Barry's gun. "The court's questions were neither repetitious, disparaging, nor prejudicial. The court also did not belabor points of evidence that clearly were adverse to [Barry]." (Id. at p. 271.) Further, after the court completed its questioning, it gave both counsel an opportunity to address the issues raised by the court's and jurors' questions by inviting counsel to ask the witnesses any additional questions they might have had. Thus, through its involvement in the questioning of witnesses, the trial court simply fulfilled its duty, in a fair and impartial way, to see that the facts were presented clearly and fully so as to elicit the truth. (See § 1044; Carlucci, supra, 23 Cal.3d at p. 255; Raviart, at p. 272.)
We must, however, agree with Barry that a juror should not be allowed to question a witness directly. Our Supreme Court has stated that the "practice of direct jury questioning of witnesses should not be permitted" because "[t]he danger of irrelevant and improper questions is high, and were counsel to object, the potential for prejudice is apparent." (People v. Cummings (1993) 4 Cal.4th 1233, 1305.) The proper procedure is for jurors to submit questions to the court and counsel for consideration and permit counsel to ask the questions. (Ibid.) Here, it appears that, on at least one occasion, this procedure was not followed when a juror "blurted out" a question to a witness. The trial court, however, quickly admonished the juror not to do that. In any event, the questions from the jurors and the testimony they elicited were not harmful to Barry, and "we . . . conclude from a review of the remainder of the trial that no harm was done by the brief irregularity in the proceedings." (People v. McAlister (1985) 167 Cal.App.3d 633, 646.)
We also do not see how the trial court committed misconduct in answering the jury's questions about whether the casing was an exhibit, whether certain pretrial testimony was accessible, or what the difference was between the two types of assault charges. The court is permitted to comment on the evidence (Melton, supra, 44 Cal.3d at p. 735), and that would certainly seem to include providing such benign information as whether a certain item was admitted into evidence or not. In addition, in response to a question from the jury on a point of law involved in the case, the court has a duty to help the jury understand the legal principles it must apply. (§ 1138; People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) Thus, in correctly answering jurors' questions about the evidence and charges, the court did not engage in any misconduct prejudicial to Barry.
Turning to Barry's complaints concerning the trial court's interactions with him and his trial counsel, we disagree with his assertion that the trial court "exhibited an antagonistic attitude toward the defense." In particular, our independent review of the record shows that the court did not, as Barry asserts, "frequently show[] its disdain for the defense case, [Barry's] lengthy answers, and [his] proffered explanations for his state of mind and actions." In our review of the transcript of Barry's testimony, we found many lengthy answers that did not respond to counsel's questions and that contained significant amounts of irrelevant matter. The trial court was therefore justified in sustaining the People's objections and advising Barry to shorten his answers. (See Evid. Code, §§ 350 [only relevant evidence is admissible], 765, subd. (a) [trial court has duty to exercise reasonable control over mode of interrogation of witness so as to make interrogation as rapid, distinct, and effective for ascertainment of truth as may be]; Estate of Martin (1915) 170 Cal. 657, 671 [court should limit testimony "within the well-defined boundaries of materiality, relevancy, and competency"].)
Finally, we reject Barry's contention that the trial court engaged in misconduct by its "outright condemnation of defense counsel during argument." The trial court had a duty to prevent Barry's counsel from misleading the jury with regard to the elements of assault. (See § 1044 [trial court has duty to limit argument of counsel to relevant and material matters]; Curcio v. Svanevik (1984) 155 Cal.App.3d 955, 964 [trial court properly warned counsel and educated jury that argument was misleading].) When Barry's counsel continued to express his disagreement with the court as to whether the People had to prove that Barry touched someone in order to be guilty of assault, even after the court instructed him to proceed, the court could properly rebuke him. (See, e.g., McWhorter, supra, 47 Cal.4th at p. 373; Guerra, supra, 37 Cal.4th at p. 1111.) Furthermore, the trial court instructed the jury in accordance with CALCRIM No. 3550 that the court had not intended by anything it had said or done during the trial to suggest what the jury's verdicts should be. "We presume the jury followed these instructions and did not penalize [Barry] because of the court's response to [his trial counsel's] misconduct." (Chong, supra, 76 Cal.App.4th at p. 245.) C. The Trial Court Did Not Abuse Its Discretion in Denying Probation
Barry complains that the trial court abused its discretion by denying him probation. After setting forth additional pertinent facts, we will explain why this complaint is not well-taken.
1. Additional Facts
At the sentencing hearing, the trial court initially acknowledged that Barry's use of a firearm in the assaults made him presumptively ineligible for probation and that the presumption could be overcome by "a showing that unusual circumstances exist."Based on Barry's age (60 at the time of the offense) and lack of criminal history, the court made a "preliminary finding[] that he is statutorily eligible for probation."
See section 1203, subdivision (e)(2) ("Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [a]ny person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted."); People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 829-830 (Du) (defendant's use of firearm in commission of voluntary manslaughter made her presumptively ineligible for probation under § 1203, subd. (e)(2)).
See California Rules of Court, rule 4.413(c)(2)(C) (facts that defendant is "youthful or aged" and "has no significant record of prior criminal offenses" may indicate unusual case).
The court then went on to consider various factors pertinent to the probation decision. In support of granting probation, the court mentioned Barry's military service, his age, and his and his wife's health problems. In support of denying probation, the court stated that Barry had not shown any remorse other than the remorse for his situation or taken responsibility for any of these events. The court also considered as supporting denial of probation the egregious nature of the crimes, including the facts that Barry orchestrated the confrontation by refusing to leave the VFW hall when requested, resorted to and fired a concealed firearm, and "taunt[ed]" Wyatt after firing at Havrilla. After considering these factors, the trial court concluded, "I am absolutely convinced that all it takes to set [Barry] off is another form of rejection. I'm not willing to take that chance. I find that he is not a fit or appropriate candidate for a grant of probation. Accordingly, his application for probation is hereby formally denied."
If a trial court determines the statutory presumption against probation has been overcome, the court then evaluates whether to grant or deny probation by applying the criteria listed in California Rules of Court, rule 4.414. (People v. Stuart (2007) 156 Cal.App.4th 165, 178 (Stuart).)
2. Legal Analysis
A trial court has broad discretion in deciding a request for probation (People v. Edwards (1976) 18 Cal.3d 796, 807; Du, supra, 5 Cal.App.4th at p. 825), and a heavy burden is imposed upon a defendant to show abuse of that discretion in denying a request for probation (People v. Kingston (1974) 44 Cal.App.3d 629, 637 (Kingston)). We will reverse a trial court's decision regarding probation only if it has abused its discretion, i.e., only if the decision is irrational, arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091; Du, at p. 825.) As we shall explain, Barry has not shouldered his heavy appellate burden.
Barry first argues that the trial court abused its discretion because the decision to deny probation demonstrated its bias against him. Barry focuses on the trial court's remarks that while Barry was sitting at the bar of the VFW hall, his wife telephoned to say she had fallen from her wheelchair onto the floor and he "callously said that he would be there when he finished his beer." The court properly considered this incident, for it reflects Barry's lack of concern for his invalid wife and thus bears on "[t]he likely effect of imprisonment on the defendant and his or her dependents." (Cal. Rules of Court, rule 4.414(b)(5), italics added.)
At trial, Barry testified that while he was sitting at the bar of the VFW hall, he received a telephone call from his wife. According to Barry: "She had explained to me that she had fallen on the floor, which she frequently does, and she couldn't get back up in the chair. I told her I would be finished with my beer and I'd be home. It took me a couple more minutes, I finished the beer and I drove home . . . ."
Our colleagues in the Third District rejected an argument similar to Barry's in People v. Gaskill (1980) 110 Cal.App.3d 1. There, the defendant contend[ed] that the court's sentencing decision was affected by its annoyance with him. (Id. at p. 5.) In rejecting this contention, the court explained: "If the court's remarks betrayed some exasperation or annoyance, it was justified by the defendant's evident disingenuousness throughout the hearing. However, the record does not indicate that the court allowed its feelings to distort its sentencing discretion. [Citation.] The court appropriately considered the defendant's apparent lack of remorse in denying probation [citation] and properly identified the different factors it considered in aggravation: '[Use] of a deadly weapon, threaten someone and their life. Appeared to be trespassing on property. . . . [P]rovoking a situation where he used a gun.' " (Id. at p. 6.) Likewise here, the trial court's perceived disdain, if any, was justified by Barry's apparent lack of concern for his wife, but in any event did not distort its sentencing decision because the court considered the relevant factors in denying probation. (See part II.C.1., ante.)
Barry's second argument — that the trial court abused its discretion because it rejected "out of bias and disdain" the probation officer's and the Department's recommendations concerning probation — is also unpersuasive. Courts are not bound to accept recommendations contained in a probation or psychological evaluation report. (People v. Welch (1993) 5 Cal.4th 228, 234; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) Here, the record indicates the trial court did not unreasonably ignore the probation officer's reports or the Department's diagnostic study; the court read and considered these documents, but rejected their recommendations based on its own view of the case and balancing of the relevant sentencing factors. "[H]aving considered them, the court 'may reject in toto the report and recommendation of the probation officer.' [Citations.] 'The primary function served by the probation report required by section 1203 is to assist the court in determining an appropriate disposition after conviction.' [Citation.] In the final analysis that determination is a matter of judgment for the court, not the probation officer." (People v. Warner (1978) 20 Cal.3d 678, 683.)
Barry's third and final argument challenging the trial court's decision to deny probation is that the court improperly relied on his lack of remorse as a basis to deny probation, because (1) he denied guilt and the evidence of guilt was conflicting and (2) the Department's diagnostic study stated that he expressed remorse. We disagree. The evidence of guilt was overwhelming. Barry admitted he shot at Havrilla, although he denied guilt by asserting that he shot in self-defense. The evidence of self-defense, however, was self-serving, weak, and, ultimately, rejected by the jury. Where, as here, the evidence of guilt is overwhelming, "[l]ack of remorse is properly utilized as a reason for denying probation even when the defendant does not admit his guilt . . . ." (People v. Leung (1992) 5 Cal.App.4th 482, 507-508). And, as we have explained, the trial court was not bound to accept the Department's diagnostic study. The court was entitled to base its probation decision on its own view of the case, including the evidence introduced at trial and at sentencing and its observations of Barry's demeanor on those occasions. (People v. Tate (2010) 49 Cal.4th 635, 686.)
In sum, Barry has not sustained his heavy appellate burden to demonstrate an abuse of discretion. (Kingston, supra, 44 Cal.App.3d at p. 637.) To the contrary, the record indicates the trial court considered factors supporting a denial of probation, such as the nature of the crimes, use of a weapon, active participation in the crimes, lack of remorse, and dangerousness to others (Cal. Rules of Court, rule 4.414(a)(1), (2), (6), (b)(7), (8)); as well factors supporting a grant of probation, such as Barry's age, military service, health and family problems, and lack of criminal history (id., rule 4.414(b)(1), (4), (5)). The record also contains sufficient evidence to support each of the factors on which the court relied. (See People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 [in determining whether trial court abused discretion in denying probation, appellate court considers whether record supports court's findings that particular factors listed in rule 4.414 were applicable].) We thus cannot say the trial court's denial of probation was " 'so irrational or arbitrary that no reasonable person could agree with it.' " (Stuart, supra, 156 Cal.App.4th at p. 179.) D. The Convictions of Assault with a Firearm (Counts 2 and 4) Must Be Reversed
Barry contends, and the People concede, that his convictions on counts 1 and 3 for assault with a semiautomatic firearm bar his convictions on counts 2 and 4 for assault with a firearm, because assault with a firearm is a lesser, necessarily included offense of assault with a semiautomatic firearm. We agree.
A defendant may not be convicted of both an offense and a lesser, necessarily included offense. (People v. Medina (2007) 41 Cal.4th 685, 701; People v. Pearson (1986) 42 Cal.3d 351, 355.) An offense is lesser than and necessarily included in another, greater offense if the defendant cannot commit the greater offense without also committing the lesser. (People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. West (1970) 3 Cal.3d 595, 612.) Under this test, assault with a firearm is a lesser, necessarily included offense of assault with a semiautomatic firearm, because a defendant cannot assault a victim with a semiautomatic firearm without also assaulting the victim with a firearm. The only difference between the two offenses is that assault with a semiautomatic firearm requires the use of a specific type of firearm, whereas the use of any type of firearm suffices for assault with a firearm. (See § 245, subds. (a)(2), (b).) Thus, the parties are correct that Barry cannot be convicted of both offenses.
We do not, however, agree with the parties that the convictions on counts 2 and 4 should be "stricken." Our Supreme Court has held: "If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed." (People v. Moran (1970) 1 Cal.3d 755, 763, italics added.) We therefore reverse the convictions on counts 2 and 4. E. The Abstract of Judgment Must Be Corrected
The parties contend the abstract of judgment must be corrected to delete the convictions on counts 2 and 4 for assault with a firearm and the related firearm enhancements. Since we are reversing these convictions, we will order the abstract corrected to delete them and the associated firearm enhancements.
The parties also contend the abstract of judgment must be corrected because it does not accurately reflect the sentence imposed by the trial court. Specifically, they assert that the firearm enhancements for the convictions on counts 1 and 3 should each be three years, rather than one year as stated on the abstract; and that the sentence for the conviction on count 3 should run concurrently with the sentence for the conviction on count 1. We agree.
The minute order in the clerk's transcript and the reporter's transcript from the sentencing hearing both state that the trial court imposed an aggregate prison term of six years. The court sentenced Barry to prison for three years for the conviction on count 1 for assault with a semiautomatic firearm (§ 245, subd. (b)) and added a consecutive term of three years for his personal use of a firearm (§ 12022.5, subds. (a), (d)). As to the conviction on count 3, the reporter's transcript does not record the imposition of any sentence; it states only that "count 3 is to be served concurrently with its allegation." The quoted statement is ambiguous in itself; but when it is read in conjunction with the trial court's other statements imposing an aggregate prison term of six years, it reasonably can be interpreted as an order that Barry serve the total sentence for the conviction on count 3, i.e., the three years for the assault, plus the three years for the firearm enhancement (or, in the trial court's words, "count 3 . . . with its allegation") concurrently with the six-year sentence already imposed for the conviction on count 1. Consistent with this interpretation of the reporter's transcript is the clerk's minute order, which states that the trial court imposed the same sentence for the conviction on count 3 as it did for the conviction on count 1 (three years for the assault, plus three years for the firearm enhancement) and ordered Barry to serve the two sentences concurrently.
The other possible interpretation — that Barry was to serve the term imposed for the conviction of the assault charged in count 3 concurrently with the term imposed for the attached firearm enhancement — would result in an unauthorized sentence, because the firearm enhancement statute mandates an "additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years." (§ 12022.5, subd. (a), italics added; see also id., subd. (d) [requiring imposition of enhancement for violation of § 245].) We therefore reject this interpretation of the trial court's statement, in accordance with the maxim that when two interpretations are possible, the one that produces a lawful result is preferred to the one that results in illegality. (Civ. Code, § 3541; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 953-954.)
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Under these circumstances, we will deem the more detailed and legally correct minute order to prevail over the ambiguous and potentially legally incorrect reporter's transcript. (See People v. Smith (1983) 33 Cal.3d 596, 599; People v. Thompson (2009) 180 Cal.App.4th 974, 978.) We thus conclude that the trial court imposed the same six-year sentence for the convictions on counts 1 and 3 and ordered Barry to serve the two sentences concurrently. We will order the abstract of judgment corrected to reflect the concurrent sentences imposed by the trial court. F. Barry Is Not Entitled to a Writ of Habeas Corpus
Barry, proceeding in propria persona, has also filed a petition for writ of habeas corpus claiming ineffective assistance of counsel at trial. Although the petition is not entirely clear, we gather from it that Barry faults his trial counsel for not interviewing any of the 15 witnesses who were on the VFW hall patio at the time of the shooting. According to Barry, had counsel done so, the witnesses would have impeached Havrilla's and Wyatt's testimony and corroborated Barry's testimony as to his location when he fired the gun, the number of people in the vicinity, and other details of the shooting. As best we can tell, Barry also complains his trial counsel: (1) did not encourage him to accept a plea offer (or inform him of the 99 percent conviction rate or pro-prosecution bias in El Cajon); (2) kept on postponing the trial because he was on pain medication for his foot; and (3) was not prepared for trial. According to Barry, he should be released from prison because he is innocent.
The legal principles we must apply to Barry's claim of ineffective assistance of counsel were set out by the United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668 (Strickland). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Id. at p. 686.) To establish ineffective assistance of counsel warranting habeas corpus relief, Barry "must show that counsel's representation fell below an objective standard of reasonableness." (Id. at p. 688.) He must also "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Barry has the burden to state with particularity the facts that establish both elements of his ineffective assistance of counsel claim, and to provide any readily available documentary evidence, such as trial transcripts and declarations, to support the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) Barry has not sustained that burden here.
With regard to Barry's contention that his counsel did not interview the 15 witnesses on the VFW hall patio, we note that "[o]ur courts 'have never required counsel to investigate all prospective witnesses [citations] and we cannot presume prejudice from the mere fact of counsel's alleged inaction.' " (In re Alcox (2006) 137 Cal.App.4th 657, 670.) Moreover, Barry "must establish the nature and relevance of the evidence that counsel failed to present or discover." (People v. Williams (1988) 44 Cal.3d 883, 937.) Barry offered no declarations from any of the alleged 15 witnesses, however. Thus, we cannot determine whether their testimony would have helped Barry in the way he contends or whether he suffered prejudice. (See Strickland, supra, 466 U.S. at p. 692 ["deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution"].)
As to Barry's complaints regarding his trial counsel's failure to encourage acceptance of the plea offer and postponement of and lack of preparation for trial, Barry submitted nothing more than his own conclusory and self-serving allegations. But, "a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." (In re Alvernaz (1992) 2 Cal.4th 924, 938.) There is also no evidence that trial counsel's postponement and poor preparation "actually had an adverse effect on the defense." (Strickland, supra, 466 U.S. at p. 693.) Without such evidence, we cannot conclude that Barry's trial counsel's allegedly deficient performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Id. at p. 686.)
In short, Barry has not stated a prima facie case for relief. We therefore deny his petition for writ of habeas corpus. (Duvall, supra, 9 Cal.4th at p. 475.)
DISPOSITION
The convictions on counts 2 and 4 (assault with a firearm (§ 245, subd. (a)(2)) are reversed. In all other respects, the judgment is affirmed. The petition for writ of habeas corpus is denied.
The trial court is directed to prepare an amended abstract of judgment deleting the convictions on counts 2 and 4 (assault with a firearm, § 245, subd. (a)(2)), as well as the attached enhancements (§ 12022.5, subd. (a)); changing from one year to three years the term of the firearm enhancement (§ 12022.5, subd. (a)) for the convictions on counts 1 and 3 (assault with a semiautomatic firearm, § 245, subd. (b)); and indicating that the sentence for the conviction on count 3 is to run concurrently with the sentence for the conviction on count 1. The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
IRION, J. WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.