Opinion
A098004.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. DERALD RAY FAGLEY, Defendant and Appellant.
Derald Ray Fagley was convicted by a jury of kidnapping, robbery, domestic violence, and other offenses committed against his girlfriend, and of violating restraining orders obtained by a former girlfriend. Defendant contends that: (1) the trial court erred in failing to sever the charges involving his former girlfriend, and committed other evidentiary and instructional errors that deprived him of due process; (2) the robbery conviction was not supported by substantial evidence; and (3) his trial counsel rendered ineffective assistance by failing to object to the consecutive sentence defendant received for robbery. Finding no merit in defendants contentions, we affirm the judgment.
BACKGROUND
Defendant was charged by information with four felonies and four misdemeanors involving two victims, Christina Lau and Monica Pitambar: kidnapping (Lau) (Pen. Code, § 207, subd. (a); count 1), false imprisonment (Lau) (§ 236; count 2), second degree robbery (Lau) (§ 212.5, subd. (c); count 3), petty theft with priors (Lau) (§ 666; count 4), misdemeanor battery on a person with whom the defendant has had a dating relationship (Lau) (§ 243, subd. (e); count 5), misdemeanor battery upon a person with whom the defendant was cohabiting or was the parent of his child (Pitambar) (§ 243, subd. (e); count 6), and misdemeanor violations of a court order on December 13, 2000 and December 24, 2000 (Pitambar) (§ 273.6, subd. (a); counts 7 & 8).
All statutory references are to the Penal Code unless otherwise indicated.
Defendant pled not guilty to all charges. Defendant admitted the theft priors before trial. Following an eight-day trial, a jury found him not guilty on count 6 and guilty as charged on all other counts. The court sentenced defendant to the middle five-year term on count 1 (kidnapping) and to a consecutive one-year term equal to one-third of the middle term on count 3 (second degree robbery). Sentence was stayed on counts 2 and 4 pursuant to section 654. The court imposed concurrent county jail terms on the misdemeanors.
We granted defendant permission to file a late notice of appeal.
Prosecution Case
Lau Charges
Viola St. Denis testified that on the evening of January 24, 2001, she received a telephone call from her granddaughter, Christina Lau. Lau told St. Denis that defendant had just beaten her up, cut her hair, and thrown her purse in the garbage. Lau was crying and sounded upset. St. Denis, who was living in San Francisco, told Lau to call her aunt who lived nearby to come and pick her up.
Laus aunt, Julie Russell, testified that Lau called her at about 8:30 p.m. on January 24. When Mrs. Russell asked Lau why she was crying Lau became hysterical and said that defendant had beaten her up. Lau told Mrs. Russell that defendant beat her up because she told him she did not want to be with him anymore and because he was jealous about her relationship with the manager of the store where she worked. Russells husband picked Lau up and brought her back to the house. Before taking her to his home, Mr. Russell drove Lau to a gas station in Burlingame where she retrieved her purse from a garbage can. Lau did not mention anything to the Russells about defendant taking money from her.
Lau told Mr. Russell that defendant had slapped her after she told him she wanted to break up with him because of his jealousy. He stated that Lau told him defendant had hit her before. The Russells observed that Laus lip was swollen and that her hair was chopped short on one side. They persuaded Lau to call the police.
The Burlingame Police videotaped an interview with Lau that evening, which was played to the jury. Lau told police that defendant picked her up at work and drove around with her through several surrounding cities. Defendant mistakenly believed she was having an affair with the manager of the hardware store where she worked. During the drive, he yelled at her and called her names. Defendant slapped her three times when they parked near San Bruno Park. He refused to let her get out of the car and threatened to run after her if she tried. When Lau asked defendant to take her home, he said, "[N]ot yet."
At a gas station in Burlingame, defendant slapped Lau again and went through her purse looking for mens telephone numbers, finding none. Defendant grabbed $25 out of Laus purse to pay for gas. Lau told him he could just take the money because she believed he would take it anyway and she wanted him to stop arguing with her. After taking the $25, defendant threw Laus purse into a garbage can. While driving Lau home, defendant told Lau that if he could not have her he did not want her to be attractive to anyone else. He held her by the hair and cut pieces of her hair off with scissors while he drove.
Police arrested defendant in a Burlingame parking lot. Arresting officers found six-inch strands of dark hair all over the front seat and floorboard, and a pair of scissors in the center console. Pictures taken of Lau on the evening of January 24 showing her clipped hair and swollen lip were placed in evidence.
At trial, Lau recanted her charges against defendant. She denied speaking to her grandmother on the evening of January 24, 2001. She testified that she was the one who was angry and jealous that night, and that she had lied to her aunt and uncle and police about what had happened in order to get defendant in trouble. She explained that she had given defendant permission to cut her hair after it became tangled in a wad of gum that he had thrown at her. She had planned on getting it trimmed anyway. Lau testified that she voluntarily handed defendant $20 out of her purse at the gas station in Burlingame because the money was actually defendants money that she was holding for him. Lau stated that her lip became swollen after another woman grabbed her and socked her in the face several times when she was on her way to use a pay phone. Lau believed that the woman who attacked her was a member of a gang claiming the color blue and that she was attacked because she was wearing red tennis shoes and fingernail polish that night. Lau denied that defendant ever prevented her from leaving the car and denied that defendant had struck her that evening or any other time. Lau attributed her false charges against defendant to her jealousy, bad temper, and the premenstrual irritability she was experiencing that evening. She also testified that she smoked marijuana before going to the police station to give her statement.
Pitambar Charges
Monica Pitambar was defendants girlfriend from 1995 to 2000 and was the mother of his five-year-old son. In July 2000, Pitambar obtained an order restraining defendant from having contact with her and her son. On December 13, 2000, Pitambar was drinking with her brother and a friend when defendant arrived. She wanted to re-establish a relationship with defendant and may have invited him to come over. The conversation was friendly at first, but an argument developed and defendant was asked to leave. He threw a paper cup of soda toward Pitambar, some of it hitting her hair and clothes. Defendant left as Pitambar was calling 911. The 911 call was played for the jury. During the call, defendant returned to the house brandishing a "Club," a vehicle anti-theft device that police found locked onto the steering wheel of defendants car when they arrested him later that evening.
On December 24, 2000, Pitambar invited defendant over to work things out. At some point, they began arguing, Pitambar called 911 again, and defendant was arrested at her house.
Defense Case
Defendants mother, Gloria Badiyo, testified that Lau told her on January 25, 2001 that she had fabricated the story about defendant attacking her the night before out of jealousy. Lau later told her that defendant had cut her hair to remove some gum and that she had been attacked by a female gang member. Badiyo and defendants cousin also testified that defendant would give Lau part of his paycheck to hold for him.
DISCUSSION
Motion to Sever
After the case was sent out for trial, defendant moved to sever the charges relating to Lau from those relating to Pitambar. The trial court found the motion untimely and also denied it on the merits. Defendant contends that this ruling deprived him of a fair trial.
Section 954 authorizes two or more offenses of the same class of crime to be joined for trial. Defendant concedes the statutory requirements for joinder have been met in this case. Where joinder is permitted by statute, the burden is on the party seeking severance to establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Sandoval (1992) 4 Cal.4th 155, 172.) A defendant may establish error in the courts refusal to sever only upon a clear showing of such prejudice. (People v. Marquez (1992) 1 Cal.4th 553, 572.) Denial of a severance motion will be not be disturbed on appeal absent a showing of an abuse of discretion that results in substantial prejudice to the defendant. (People v. Walker (1988) 47 Cal.3d 605, 623.)
Section 954 authorizes the joinder of different offenses in pertinent part as follows: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . . [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
A trial courts refusal to sever in a non-capital case may constitute an abuse of discretion where: (1) evidence on the crimes would not be cross-admissible in separate trials; (2) certain charges are likely to inflame the jury against the defendant; and (3) a weak case is joined with a strong one, or with another weak one, so that the spillover effect of aggregate evidence from the cases might well alter the outcome of some or all of the charges. (People v. Sandoval, supra, 4 Cal.4th at pp. 172—173.) The defendant must show substantial prejudice outweighing the benefit of joint trials in conserving judicial resources and public funds. (People v. Bean (1988) 46 Cal.3d 919, 939—940.) However, " `. . . the pursuit of judicial economy and efficiency may never be used to deny a defendant his right to a fair trial. " (People v. Smallwood (1986) 42 Cal.3d 415, 427.)
The first step is to determine if the evidence would have been cross-admissible in separate trials. If it was cross-admissible, any inference of prejudice is dispelled. (People v. Memro (1995) 11 Cal.4th 786, 850.) Defendant asserts that evidence of his December 2000 domestic violence offenses against Pitambar was not admissible under Evidence Code sections 1101 or 1109 on the charges involving Lau, but he fails to buttress that assertion with argument and analysis specific to the evidence concerning those offenses. Instead, he merely refers us to his argument concerning the admissibility of a separate, uncharged incident of domestic violence against Pitambar that occurred in 1997. We need not consider an issue not properly briefed on appeal. (City of Oakland v. Public Employees Retirement System (2002) 95 Cal.App.4th 29, 52, citing People v. Gidney (1937) 10 Cal.2d 138, 142—143.)
Pitambar testified that defendant slapped her face in a liquor store after he noticed a hickey on her neck.
In any event, evidence of the Pitambar and Lau offenses would have been cross-admissible in separate trials under Evidence Code section 1109. All three incidents involved domestic violence and occurred close in time. In three separate trials, each incident would have been probative of the others. Defendant nonetheless claims that any probative value of the Lau evidence would have been outweighed by the probability that it would unduly prejudice the jurys consideration of the less serious Pitambar charges. We are not persuaded. Defendants conduct with Lau, although more aggravated than his behavior toward Pitambar, did not stand out as being so egregious or inflammatory that hearing evidence about it was likely to divert the jury from fairly evaluating the strength of the prosecutions case on the Pitambar misdemeanors.
Evidence Code section 1109, subdivision (a)(1) allows for the admission of other acts of domestic violence: "Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Defendants somewhat contradictory argument that the Pitambar evidence compromised his ability to defend against the Lau charges is also unpersuasive. According to defendant, the Pitambar case was strong because it was based on undisputed eyewitness testimony whereas the Lau charges were weak because the alleged victim recanted the factual basis for these charges when she testified at trial. Defendant posits that the strong evidence substantiating the Pitambar charges swayed the jury to overlook the weak case as to Lau. The record does not support these characterizations of the evidence.
First, the Lau case was not weak. It was built on Laus contemporaneous statements to her aunt, uncle, grandmother, and the police, all of which were consistent and corroborated by physical evidence, including Laus injuries and the scissors and hair found in defendants car. Far from undermining the prosecutions case, Laus trial testimony, if anything, clinched it. She was 19 years old and clearly infatuated with the defendant as shown by love letters she sent to him in prison that were placed in evidence. Her motivation to help him avoid conviction was obvious. At the same time, Laus attempted exculpatory explanations for her statements and injuries on the night of the incident were so far-fetched that they could do nothing but reinforce the prosecutions version of what occurred.
Conversely, the Pitambar case was not particularly strong. Pitambar was an obviously reluctant witness for the prosecution. She admitted that she wanted to resume her relationship with the defendant and had sent him a love letter while he was awaiting trial on the charged incidents. She further admitted that she had invited the defendant to her house on one if not both of the occasions in issue, and that she had been drinking and could not see clearly. In the end, the jury acquitted defendant of battery on Pitambar, which was the most serious of the Pitambar charges.
In sum, we find that the two sets of charges would have been cross-admissible in separate trials, none of the charges would have been likely to inflame the jury against the defendant, and the charges were not so different in strength that conviction on one was likely to affect the outcome of another. We hold that: (1) the trial court did not abuse its discretion in denying the defendants severance motion; and (2) defendant has failed to demonstrate that joinder of the charges resulted in an unfair trial.
Robbery Conviction
Defendant contends that his robbery conviction cannot stand because there is no evidence that the $25 he received from Lau was obtained by "force or fear." (§ 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."].) According to defendant, Laus own statements to police on the night of the incident, discussed below, negate the prosecutions robbery theory.
The essential elements of robbery are: "(1) a taking (2) of personal property (3) in the possession of another (4) from her person or immediate presence (5) against her will (6) accomplished by means of force or fear (7) with an intent to permanently deprive." (People v. Prieto (1993) 15 Cal.App.4th 210, 213.) "[N]either resistance by the victim nor threats by the perpetrator are necessary elements of robbery." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708.) The force or fear element is satisfied "if the force or fear caused the victim to give up his or her property." (People v. Smith (1995) 33 Cal.App.4th 1586, 1595.)
The force required for the crime of robbery need not be applied directly to the person of the victim, People v. Wright (1996) 52 Cal.App.4th 203 at p. 210, and the degree of force is immaterial, People v. Garcia (1996) 45 Cal.App.4th 1242 at p. 1246. " `[T]he force by means of which robbery may be committed is either actual or constructive. The former includes all violence inflicted directly on the persons robbed; the latter encompasses all . . . means by which the person robbed is put in fear sufficient to suspend the free exercise of . . . will or prevent resistance to the taking. [Citation.]" (People v. Wright , supra, 52 Cal.App.4th at p. 210.) Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)
Defendant focuses on Laus statements to police that: (1) defendant wanted the $25 to pay for gas and (2) she told him he could take the money so he would stop arguing with her, not because she was scared of him. However, considering all of the events and circumstances recounted in Laus interview with police, we find there was sufficient evidence for the jury to infer that defendant obtained money from her by "force or fear."
The first thing Lau told her police interviewer was, "I dont want to get hit no more . . . ." The evidence demonstrated that defendant was enraged and irrational that evening. He had held Lau in his car against her will and threatened to "fuck [her] up" if she was cheating on him. By the time they reached the gas station where the alleged robbery took place, he had already struck her "about three times." While parked at the gas station, he struck her again. He had grabbed Laus purse and was going through it looking for telephone numbers. At that point, when defendant proceeded to pull $25 out of her purse, Lau offered no resistance, saying only, "[O]kay, fine take it." As Lau later explained to the police, she wanted to stop him from arguing with her and she believed at that moment that "hed probably just take it anyway." When the interviewing officer asked, "Take it by force then, huh?, " Lau responded, "Yeah."
In our view, the jury could reasonably infer from this evidence that Lau allowed defendant to take money from her purse out of fear and not in the exercise of her free will. In the circumstances, Lau had ample reason to fear that defendant would hit her again or otherwise take the money by force if she offered resistance. The jury was not required to believe that Lau willingly relinquished $25 of her money to a person who had just been slapping her around, verbally abusing her, rummaging without permission through her purse, and holding her against her will.
Defendants robbery conviction is supported by substantial evidence.
Uncharged Domestic Violence Incident
The prosecution was allowed to question Pitambar about a 1997 incident in which defendant slapped her face in a liquor store after seeing a hickey on her neck. The trial court ruled that the evidence was admissible under sections 1101 and 1109 of the Evidence Code. During trial the prosecutor advised that the 1997 incident would be offered only under Evidence Code section 1109.
Defendant contends that the trial court erred on various grounds in admitting evidence of the 1997 incident: (1) the incident was irrelevant to the charged offenses; (2) the trial court abused its discretion under Evidence Code section 352 in deciding to permit testimony about it; and (3) admission of the evidence violated defendants constitutional right to due process and equal protection.
Defendants relevance and Evidence Code section 352 arguments are unsupported by any explanation or analysis. Defendant merely asserts that the 1997 domestic violence incident is irrelevant to the charges against him. He further asserts, contrary to the record and without further analysis, that the trial court failed to apply Evidence Code section 352 to the evidence. Although defendant cites People v. Harris (1998) 60 Cal.App.4th 727, a case holding that inflammatory evidence of a violent crime committed 20 years earlier should not have been admitted under section 1109 in a prosecution for wholly dissimilar new offenses, he makes no attempt to analyze or explain how or why Harris applies to the case before us. We find no parallel whatsoever.
Evidence Code section 1109 permits the admission of prior acts to prove disposition as long as the evidence passes muster under Evidence Code section 352. The 1997 incident was neither dissimilar to nor remote in time from the offenses against Lau. In both cases, defendant became convinced his girlfriend was unfaithful to him, flew into a jealous rage, and slapped the victim hard enough to cause injuries. Although similar in nature to the current offense, the conduct involved in the uncharged prior incident was less inflammatory, and therefore unlikely to arouse undue prejudice against the defendant. In the absence of any substantive countervailing argument as to the admissibility of the 1997 incident under Evidence Code section 1109, we need not further consider this issue. (People v. Gidney, supra, 10 Cal.2d at pp. 142—143, disapproved on another point in People v. Hutchinson (1969) 71 Cal.2d 342, 347.)
Defendants constitutional arguments are also without merit. First, defendant waived those arguments by failing to raise them in the trial court. (People v. McPeters (1992) 2 Cal.4th 1148, 1188.) The waiver issue was raised in respondents brief. Having failed to address that point in his reply brief, defendant must be deemed to have conceded it. In any event, for the reasons discussed below, defendants due process arguments also fail on their merits.
In fact, the vast majority of defendants reply brief consists of text lifted verbatim from his opening brief. This counterfeit method of responding to an opposing partys arguments does a disservice to this court, and we disapprove of it.
The due process issues defendant raises have already been considered and rejected on the merits by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), and we are bound by its determinations. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Although Falsetta was concerned with the constitutionality of Evidence Code section 1108, we find that its due process analysis applies with equal force to section 1109. (See People v. Johnson (2000) 77 Cal.App.4th 410, 420.)
Defendant further contends that by allowing admission of propensity evidence against those accused of domestic violence when it would be inadmissible in most other criminal cases, Evidence Code section 1109 violates his federal and state constitutional right to equal protection. The California Supreme Court has not directly faced an equal protection challenge to this statute. However, in Falsetta the Court impliedly endorsed the Third Appellate Districts analysis of the equal protection issue in People v. Fitch (1997) 55 Cal.App.4th 172 (Fitch ). (Falsetta, supra, 21 Cal.4th at p. 918.)
Although Fitch dealt with Evidence Code section 1108, its analysis applies equally to section 1109. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1313 (Jennings) [rejecting an equal protection challenge to section 1109 based in part on Fitch].) As in Fitch and Jennings, we would apply the rational relationship test, rather than the more stringent strict scrutiny test. Having already rejected defendants claim that section 1109 violates due process protections, the strict scrutiny test for equal protection challenges is inapplicable. (Fitch, supra, 55 Cal.App.4th at p. 184; Jennings, supra, 81 Cal.App.4th at p. 1312.) Under the rational basis test, the burden of proving an invalid classification falls on defendant. (See DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16.) The question raised by such a challenge is whether the distinctions drawn by the statute bear some rational relationship to a proper state purpose. (Prison Law Office v. Koenig (1986) 186 Cal.App.3d 560, 566; see DAmico v. Board of Medical Examiners, supra, at p. 16.)
Evidence Code section 1109 passes muster under the rational basis test. The United States Constitution does not require things that are different in fact to be legally treated as if they were the same. (Estelle v. Dorrough (1975) 420 U.S. 534, 538—539.) As stated in Jennings, there is a rational basis for distinguishing domestic violence offenses from other crimes for purposes of section 1109: "[D]omestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in . . . domestic violence and sexual abuse cases . . . easily distinguishes these offenses from [other crimes] . . . . Although all criminal trials are credibility contests to some extent, this is unusually—even inevitably—so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses . . . in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused." (Jennings, supra, 81 Cal.App.4th at p. 1313.)
Accordingly, the trial court properly admitted evidence of the 1997 domestic violence incident involving Ms. Pitambar.
Instructions on Prior Domestic Violence
Defendant contends that the giving of the 2000 revision of CALJIC No. 2.50.02 along with CALJIC Nos. 2.50.1 and 2.50.2 in this case deprived him of his constitutional right to be acquitted unless the jury was convinced of his guilt beyond a reasonable doubt. According to defendant, the combination of these instructions might have led the jury to believe it could convict him of the charged offenses if it found by a mere preponderance of the evidence that he had committed one or more prior acts of domestic violence.
The jury was instructed as follows pursuant to CALJIC No. 2.50.02: "If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes with which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. The weight and significance, if any, are for you to decide. [& para;] Unless you are otherwise instructed, you must not consider this evidence for any other purpose." This was followed by CALJIC Nos. 2.50.1 and 2.50.2, which defined "preponderance of the evidence," placed the burden of proving the prior offenses on the prosecution, and specified that alleged prior acts could not be considered for any purpose by the jury unless it found by a preponderance of the evidence that the defendant committed them.
As defendant recognizes, the California Supreme Court has upheld precisely parallel instructions on prior offense evidence in sex offense cases. (See People v. Reliford (2003) 29 Cal.4th 1007, 1012—1016.) Although defendant asks us to limit Reliford to sexual offense cases, he suggests no rationale for doing so. We find that Relifords reasoning is directly applicable to this case and hold that the prior offense instructions given here do not call into question whether defendants convictions are based on the correct standard of proof.
CALJIC No. 1.00
The trial court instructed the jury as follows pursuant to CALJIC No. 1.00: "You must not be influenced by pity for or prejudice against the defendant. You must not be biased against the defendant because he has been arrested for this offense, charged with a crime or brought to trial. None of these circumstances is evidence of guilt, and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty." Defendant argues that the phrase "more likely to be guilty than not guilty" in this instruction might have misled the jury by suggesting a lesser or different standard for proving guilt than "proof beyond a reasonable doubt."
A similar claim that CALJIC No. 1.00 undercuts the reasonable doubt standard was rejected in People v. Wade (1995) 39 Cal.App.4th 1487 (Wade): "[T]he jury would not have construed the instruction in the manner suggested by defendant. A reasonable juror would understand this instruction as an advisement to disregard the facts that defendant had been arrested, charged, and brought to trial, and to presume the defendant innocent. . . . [¶] Moreover, the jurors were clearly and fully instructed on the burden of proof. They were told defendants plea of not guilty `places upon the prosecution the burden to establish beyond a reasonable doubt that the defendant is guilty of the crimes charged . . . . The jury was also instructed [under CALJIC No. 2.90] as follows: `A defendant in a criminal action is presumed to be innocent until the contrary is proved. . . . This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. . . . " (Id. at p. 1492.)
Wade was cited with approval by the California Supreme Court in People v. Snow (2003) 30 Cal.4th 43 in the course of rejecting an argument that the use of certain standard criminal instructions, including CALJIC No. 1.00, might cause a jury to misunderstand the requirement to find guilt beyond reasonable doubt. (Id. at p. 97.)
The precedent defendant relies on, People v. Dail (1943) 22 Cal.2d 642, involved the giving of two directly contradictory instructions, one erroneous and one correct, on the credibility of accomplice testimony. (Id. at p. 653.) The Supreme Court held that this type of instructional error could not help but confuse the jurors on an issue vital to the judgment. (Ibid.) We find no such contradiction in this case. The challenged instruction admonishes the jury not to infer a likelihood of guilt from the fact of defendants arrest and prosecution. It does not instruct jurors about the level of proof necessary to find the defendant guilty.
On the record before us, we do not find it reasonably likely that the use of CALJIC No. 1.00 confused the jury about the prosecutions burden of proof.
Sua Sponte Duty to Define "Material Part"
The jury was instructed as follows under CALJIC No. 2.21.2: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." Defendant contends that "material part" has a technical, legal meaning on which the trial court had a sua sponte duty to instruct the jury. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 [court has sua sponte duty to define terms having a technical meaning peculiar to the law].)
We are not persuaded. In Wade, supra, 39 Cal.App.4th at pp. 1495—1496, the Third District Court of Appeal considered an identical challenge to CALJIC No. 2.21.2. The Wade court found that although the word "material" may have a specialized meaning in certain legal contexts, such as the law of perjury, in CALJIC No. 2.21.2 it carries the common, dictionary meaning of "substantial . . . essential . . . relevant . . . pertinent." (Ibid.; cf. People v. Feinberg (1997) 51 Cal.App.4th 1566, 1575 ["material" has specialized meaning in perjury context].)
The trial court did not err in failing to instruct the jury sua sponte on the meaning of the term "material part" in CALJIC No. 2.21.2.
Reasonable Doubt Instruction
In accordance with CALJIC No. 2.90 the trial court instructed the jury with the following definition of "reasonable doubt": "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." Defendant contends that the term "abiding conviction" is too easily confused with the "clear and convincing" evidentiary standard and fails to convey to the jury the degree of certainty necessary to establish proof beyond a reasonable doubt.
Defendant requested that CALJIC No. 2.90 be given. We need not consider an asserted error that the defendant invited. (People v. Medina (1995) 11 Cal.4th 694, 763.) In any event, California courts have consistently rejected challenges to CALJIC No. 2.90 that are indistinguishable from defendants. (See People v. Hearon (1999) 72 Cal.App.4th 1285, 1286—1287 and cases cited therein; People v. Haynes (1998) 61 Cal.App.4th 1282, 1299; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1208—1209.) As defendant acknowledges, People v. Freeman (1994) 8 Cal.4th 450, 504 impliedly endorses the language that he finds prejudicial. Defendant furnishes no basis for us to reach a different conclusion.
Ineffective Assistance at Sentencing
Defendant contends that his sentence must be vacated because the trial court failed to state any reason for imposing a consecutive sentence of one year for the robbery count in addition to the five-year term for kidnapping. (See § 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5).)
Claims involving a trial courts failure to articulate reasons for its discretionary sentencing choices are generally not subject to review when raised for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354.) Recognizing that no objection to the consecutive sentence was made in the trial court, defendant relies on the theory that his trial counsels failure to object constitutes ineffective assistance.
The right to effective assistance of counsel is guaranteed by both the federal and California constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) Defendant has the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788.) "The claim of ineffective assistance of counsel involves two components, a showing the counsels performance was deficient and proof of actual prejudice." (Id. at p. 786; see Ledesma, supra, at pp. 216—217.)
To be deficient, counsels performance must have fallen " `. . . below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.]" (Ledesma, supra, 43 Cal.3d at p. 216.) In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of " `second-guessing. " (Ibid.) Further, prejudice must be affirmatively proved. " `. . . The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. . . . [Citations.]" (Id. at pp. 217—218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
California Rules of Court, rule 4.425 lists non-exclusive criteria for determining whether to impose a consecutive rather than concurrent sentence. These include whether (1) "[t]he crimes and their objectives were predominantly independent of each other"; (2) "[t]he crimes involved separate acts of violence or threats of violence"; and (3) "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)—(3).) In addition, the trial court may consider any facts in aggravation or mitigation except those used to impose the upper term, to enhance the defendants sentence, or those that constitute elements of the crime. (Cal. Rules of Court, rule 4.425(b).) A decision to sentence consecutively need only be supported by one of these factors. (People v. Osband (1996) 13 Cal.4th 622, 728—729.)
In this case, the trial court was clearly authorized to impose a consecutive sentence for the robbery because it involved an objective that was separate and independent from the kidnapping of Lau. Because defendant was sentenced to the middle term on the base offense of kidnapping, any of the aggravating factors mentioned in the defendants probation report could have been used as a basis for imposing a consecutive term for robbery. In fact, defendants probation report contained only aggravating factors with no mitigating factors. The aggravating factors included that the offense involved the threat and commission of violence and bodily harm, defendant demonstrated cruelty and viciousness in cutting the victims hair, defendants adult convictions escalated in seriousness and frequency, defendant was on probation at the time of the offenses, and defendant had performed unsatisfactorily on probation.
The only mitigating factor proffered by defendant was his "long history of crystal methamphetamine abuse."
The report described defendants prior probation performance as "deplorable."
On this record we do not find it reasonably probable that a timely objection would have resulted in the imposition of a concurrent term for robbery. Because defendant fails to sustain his burden of demonstrating prejudice, we need not decide whether his trial counsels performance was deficient.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Stein, J.