Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF027012. Christine V. Pate, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Joanna Rehm, under appointment by the Court of Appeal, and Ralph Rogari for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Sharon L. Rhodes, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Ricky Donell Jones stabbed a dog to death. It belonged to his girlfriend’s 10-year-old son; defendant inferably intended to punish the boy for letting the dog out.
A jury found defendant guilty of cruelty to an animal (Pen. Code, § 597, subd. (a)) and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)). He admitted four “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). On defendant’s motion, the trial court struck three of defendant’s four strikes. It then sentenced him to a total of seven years in prison.
In this appeal, defendant contends:
1. The trial court erred by instructing the jury that the intent to vex, annoy, or injure another person could constitute malice for purposes of animal cruelty.
2. The trial court erred by instructing the jury that it could consider prior instances of child abuse in determining whether defendant was guilty of child endangerment.
3. Defendant’s trial counsel’s performance was so deficient as to violate the Sixth Amendment.
We find no error affecting the conviction. On our own, however, we have identified one sentencing error. We will modify the judgment accordingly. Otherwise, we will affirm.
I
FACTUAL BACKGROUND
A. The Prosecution’s Case.
Defendant was living with Sarah R. They had a baby girl together. Sarah’s four sons also lived with them.
As of October 2008, Sarah’s oldest son, C.R., was 10 years old. C. testified that he was afraid of defendant. He explained that, on one occasion, his mother told him he could sleep in, but defendant woke him up; because he had overslept and/or because he had not finished his chores, defendant hit him with a ruler until it broke, then continued to hit him with a belt. Sarah “ran down the stairs and said, ‘Stop it. Stop it.’” Defendant just yelled at her and told her to go back upstairs.
The family had several dogs. C.’s chores included taking care of the dogs — feeding them, walking them, and cleaning up after them. According to C., defendant was not “nice” to the dogs. He explained that when they scratched on the door and wanted to come inside, defendant would hit them.
One of the dogs was Jack, an Australian cattle dog about six months old. C. considered Jack to be his own pet. Jack slept in a kennel in the backyard. Defendant had strict rules about not allowing Jack in the house.
On October 6, 2008, in the morning, when C. went to clean up after the dogs, he let Jack out of his cage. Jack ran to the door of the garage. Defendant came outside and threw Jack on the ground. After disposing of the dogs’ “poop, ” C. “went to see if [Jack] was all right....” He heard Jack “screaming” in defendant and Sarah’s bedroom. He also heard Sarah say, “Don’t do it, don’t do it, ” and defendant say, “Shut up.”
C. was not allowed to go in defendant’s bedroom, so he went to his own room. When Sarah came in to take him to school, she was crying. Once C. got to school, a friend saw him crying and asked him what was wrong. C. said that defendant had killed his dog. During the day, he also told this to several other friends.
Around 3:00 p.m., an anonymous caller reported “child abuse and animal cruelty allegations” to the police. When the police responded, they found C. and his three younger brothers home alone. The boys began to cry because they were worried about getting into trouble with defendant. One of them said he was afraid that defendant would kill him.
C. testified that he often babysat his brothers for two or three hours at a time. However, he had no way of contacting his mother or defendant, as “they didn’t let [him] have their phone number.” An officer managed to find Sarah’s phone number. He called her and asked her and defendant to come home.
When the police interviewed defendant, he admitted killing Jack by “us[ing] a[n] object to puncture the dog’s lungs....” He said the dog was a “financial burden” because it would escape by digging under the fence, and the neighbors would complain. He had put the body in the trash bin. When asked why he had not taken the dog to the Humane Society, he said he did not know you could do that. He also said the dog was “too vicious” to take to animal control. Defendant denied abusing or physically disciplining the children.
Jack’s body was found in the trash bin. He had been stabbed twice in the chest, while lying on his side. He had a collapsed lung; as a result, he had died slowly of suffocation. In addition, his right hip was dislocated or broken, and he had “extensive” bruises, especially around his neck and on his abdomen.
Kristen Stennett, a social worker, interviewed Sarah. Sarah told her that defendant “had stabbed the dog in front of her” while she was holding the baby and had “made her watch him kill the dog.” She said defendant had killed the dog because “he was irritated that the dog was barking all the time....”
When Stennett spoke to the children, they said that two weeks earlier, defendant “had killed their cat with a bat....” According to Stennett, Sarah admitted that the cat was dead. She explained that the cat had bitten defendant, and defendant “was trying to get the cat out of the bedroom using a bat.”
B. The Defense Case.
Sarah testified that the people she bought Jack from told her “they couldn’t handle him anymore” and he “was too much for their [five-year-old] daughter to deal with.” Jack was “aggressive” with Sarah’s children. On one occasion, he “pinned... down” her six-year-old son. When her two-year-old pulled Jack’s ears and tail, Jack “snapped at” him. Jack would “attack” and bite the family’s other dogs. He would get out under the fence and “stalk” passersby.
The night before the stabbing, C. had “snuck [Jack] in his room.” He was trying to sneak Jack back out again when Sarah saw them through the bedroom door, which was open. At first, Jack “didn’t know which way to go, ” but then he “rushed in” to the bedroom. The seven-month-old baby was lying on the floor. Jack “went after” the baby, putting his head down, growling, and snapping at her. He was no more than a foot away when Sarah grabbed the baby, and defendant grabbed the dog. There was a kitchen knife in the bedroom that had been used to cut the wrapping away from some new furniture. Defendant took the knife, held Jack down on the bathroom floor, and stabbed him.
Sarah stated that, after Jack ran into the bedroom, but before defendant stabbed him, “the door shut....” She was not asked to explain how it shut or who shut it.
On cross-examination, Sarah admitted lying to the police by telling them that Jack had run away.
According to Sarah, when she talked to Stennett, she was “under severe duress” imposed by the police. She admitted telling Stennett that defendant would spank the children with a belt or a shoe. However, she denied saying that defendant killed the dog because it had been barking or that he made her watch. She admitted talking to a different social worker about the cat but denied talking to Stennett about it. She no longer had the cat, she admitted, but, she added, “[T]he cat didn’t die.”
II
MISINSTRUCTION ON THE MALICE ELEMENT OF ANIMAL CRUELTY
Defendant contends that the trial court misinstructed the jury regarding the malice element of animal cruelty.
A. Additional Factual and Procedural Background.
The jury was instructed that animal cruelty required that defendant have acted “maliciously.” It then instructed: “The words ‘malice’ and ‘maliciously’ mean a wish to vex, annoy, or injure another person or animal, or an intent to do a wrongful act.” (CALJIC No. 1.22.)
Defense counsel objected to this definition of malice, citing a case that is not named in the record, but that apparently was People v. Dunn (1974) 39 Cal.App.3d 418. The trial court overruled the objection.
In closing argument, the prosecutor argued that defendant killed Jack to punish C.: “The defendant’s actions in taking Jack and throwing him to the ground and stabbing him were to punish C.... for letting the dog out of the kennel, a rule that was put in place by the defendant, and it made the defendant mad that his rules were not being followed, and he was going to make an example, and he used Jack.”
The prosecutor also argued that defendant also intended to punish Sarah and her other children: “And why did he make Ms. R[.] watch? Probably to show that he was in control, to show the example because he knew that she let the dog in sometimes, and she gave C. a little more leeway and the other children a little more leeway than he thought was appropriate, and he was using that dog as punishment, punishment to C. and the whole family.”
B. Analysis.
Defendant was charged with animal cruelty under Penal Code section 597, subdivision (a). This subdivision requires that the defendant act “maliciously and intentionally.”
Penal Code section 7 defines “malice” in general as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act....” (Pen. Code, § 7, par. 4.)
Defendant relies on People v. Dunn, supra, 39 Cal.App.3d 418. There, the defendant was charged with animal cruelty under Penal Code section 597, subdivision (a). The trial court instructed that malice meant “an intent to do a wrongful act.” (Dunn, at p. 420.)
At the time, Penal Code section 597 was written very differently. Penal Code section 597, subdivision (a) (hereafter subdivision (a)) applied exclusively to cruelty to an animal owned by another; it expressly required malice. Penal Code section 597, subdivision (b) (hereafter subdivision (b)) applied to cruelty to any animal, and it did not expressly require malice. (People v. Dunn, supra, 39 Cal.App.3d at p. 420; see Stats. 1972, ch. 779, § 1, p. 1394.) The defendant therefore argued that the malice required under subdivision (a) must be malice toward the owner of the animal. (Dunn, at pp. 420-421.)
The appellate court disagreed. It reasoned that subdivision (b), by using such words as “tortures, ” “torments, ” and “cruelly beats, ” still implicitly required malice, in the sense of an intent to do a wrongful act. (People v. Dunn, supra, 39 Cal.App.3d at pp. 420-421.) It concluded: “Thus we find no error in the court’s failure to instruct that the word ‘maliciously’ imports a wish to ‘vex, annoy, or injure another person.’ That instruction would be proper under a statute designed to proscribe malicious mischief, but has no place in a statute intended to prohibit cruelty to animals, which section 597 clearly is intended to do.” (Id. at p. 421.)
In sum, then, Dunn held that, in a prosecution under subdivision (a), the trial court is not required to instruct that malice consists of a wish to injure another person. It reasoned that the malice expressly required under subdivision (a) could be the same kind of malice implicitly required under subdivision (b). However, it did not hold that such an instruction would be erroneous. Indeed, its analysis suggests the contrary. Its statement that such an instruction “has no place” in a prosecution under subdivision (a) seems to be simply overbroad dictum.
In any event, assuming, without deciding, that the instruction given in this case was erroneous, the error was harmless under any standard. If defendant intentionally killed Jack with the intent to vex, annoy, or injure another person, then by definition he also intended to do a wrongful act.
The instruction was probably erroneous to the extent that it stated that malice could consist of the intent to vex, annoy, or injure “another... animal.” Defendant, however, has not raised this as an issue and thus has forfeited it. In any event, any such error would likewise be harmless, as there was no evidence that defendant killed Jack in order to vex, annoy, or injure some animal other than Jack.
At oral argument, defendant asserted that he had a right to kill his own animal for any purpose, provided he did not do so in a cruel manner; thus, he did not necessarily intend to do a wrongful act. We disagree. Subdivision (a) prohibits “maliciously and intentionally kill[ing] an animal....” Thus, the actus reus — the wrongful act — is killing an animal, regardless of whether the defendant is the owner of the animal.
There are various exceptions that do not apply here, such as killing an animal in conformity with the game laws, killing an animal for food, or killing an animal known to be dangerous. (Pen. Code, § 599c; People v. Thomason (2000) 84 Cal.App.4th 1064, 1067-1069.)
Animal cruelty is a general intent crime. (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1190.) “The expressions ‘willfully, ’ ‘knowingly, ’ ‘intentionally, ’ and ‘maliciously’ are expressions of general, not specific, intent when used in a penal statute. [Citations.]” (Id. at p. 1188.) “General intent is present ‘[w]hen a person intentionally does that which the law declares to be a crime... even though he may not know that his act or conduct is unlawful.’” (People v. Turner (1983) 145 Cal.App.3d 658, 682, disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6 and People v. Majors (1998) 18 Cal.4th 385, 411.) Thus, the jury was not required to find that defendant knew that killing Jack was illegal.
We therefore conclude that the error, if any, was not prejudicial.
III
INSTRUCTING THE JURY THAT IT COULD CONSIDER PRIOR ACTS OF CHILD ABUSE AS EVIDENCE OF A PROPENSITY TO COMMIT CHILD ENDANGERMENT
Defendant contends that the trial court erred by instructing the jury that it could consider prior instances of child abuse in determining whether defendant was guilty of child endangerment.
A. Additional Factual and Procedural Background.
As already noted, C. testified that defendant had previously hit him with a ruler and a belt.
During deliberations, the jury asked, “In regard to count 2 —... are we to consider only the incident on October 6, 2008 or can we consider other incidents such as the testimony concerning past physical abuse/endangerment[?]”
With the agreement of both counsel, the trial court responded, “You can consider whatever you find to be evidence as to the date of Oct. 6, 2008.”
About an hour and a half later, the jury asked, “Can we consider acts prior to [October 6, 2008] to come to a conclusion for charge #2 as long as they were presented during testimony[?]”
This time, the prosecutor argued that the prior acts of child abuse were admissible as propensity evidence under Evidence Code section 1109, and therefore that the trial court should respond by instructing the jury with CALCRIM No. 852 (Evidence of Uncharged Domestic Violence). Defense counsel objected, “[I]t’s a 352 issue. There’s too much prejudice....” The trial court overruled the objection. It therefore gave CALCRIM No. 852.
The instruction as given stated:
B. Analysis.
Defendant argues that the prior acts of child abuse were not admissible as propensity evidence, and the jury should not have been allowed to consider them for this purpose, because this was not a prosecution for either “domestic violence” or “child abuse” within the meaning of Evidence Code section 1109.
The People concede that the trial court erred; they merely argue that the error was harmless. We disagree, and we reject the People’s concession.
Under Evidence Code section 1109, subdivision (a)(1), “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Similarly, under Evidence Code section 1109, subdivision (a)(3), “in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
We begin with Evidence Code section 1109, subdivision (a)(3). “Child abuse” for purposes of this subdivision is defined as “an act proscribed by Section 273d of the Penal Code.” (Id., subd. (d)(2).) Penal Code section 273d prohibits “willfully inflict[ing] upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition....” (Pen. Code, § 273d, subd. (a).)
The child endangerment charged in this case consisted of the willful infliction of mental suffering, i.e., by killing Jack. Arguably, it could alternatively have been based on the act of leaving the children home alone. Either way, however, it did not involve any corporal punishment or injury. Thus, we agree with the parties that any prior acts of child abuse were not admissible under Evidence Code section 1109, subdivision (a)(3).
Evidence Code section 1109, subdivision (a)(1), however, is a different story. “Domestic violence” for purposes of this subdivision is defined as either:
1. “Domestic violence” as defined “in Section 13700 of the Penal Code”; or
2. “Domestic violence” as defined “in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).)
Under Penal Code section 13700, “domestic violence” is limited to “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subds. (a), (b).) Once again, the child endangerment in this case did not meet this standard.
Under Family Code section 6211, however, “domestic violence” must consist of “abuse.” “Abuse, ” in turn, “means any of the following:
“(a) Intentionally or recklessly to cause or attempt to cause bodily injury.
“(b) Sexual assault.
“(c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
“(d) To engage in any behavior that has been or could be enjoined pursuant to [Family Code s]ection 6320.” (Fam. Code, § 6203, italics added.)
And finally, under Family Code section 6320, the court can enjoin — among other things — “molesting, attacking, striking, threatening, harming, or otherwise disposing of” “any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent.” (Fam. Code, § 6320, subd. (b).)
In sum, then, killing Jack constituted behavior that could have been enjoined under Family Code section 6230. It therefore constituted domestic violence under Family Code section 6211, and also under Evidence Code section 1109, subdivision (a)(3). Defense counsel did not object to the evidence itself (as opposed to the instruction), based on Evidence Code section 352 or otherwise. Moreover, in this appeal, defendant does not argue that the evidence should have been excluded under Evidence Code section 352.
We therefore conclude that the evidence of prior acts of domestic violence was admissible. Moreover, the trial court did not err by instructing the jury that it could consider the prior acts of domestic violence as evidence of a propensity to commit the acts of child endangerment alleged in this case.
In a subsidiary argument, defendant asserts that the trial court “compounded the error” by failing to instruct the jury, sua sponte, that defendant had the right to administer reasonable corporal punishment for purposes of discipline. (See People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 [Fourth Dist., Div. Two].) It is not at all clear that defendant is raising this as an independent assignment of error, separate and apart from the supposed error in giving CALCRIM No. 852. If he is, the contention fails. The right to discipline belongs to the parent. (Whitehurst, at p. 1050.) There is some authority that it can also be exercised one who is acting in loco parentis. (People v. Curtiss (1931) 116 Cal.App. Supp. 771, 775.) Even if so, however, a person who is not a parent and who (unlike a teacher or a legal guardian) has no legal authority over the child has no right to discipline a child when a parent is present and objecting. Here, the evidence showed that, when defendant hit C. with a ruler and a belt, Sarah yelled, “Stop it. Stop it, ” but defendant ignored her. Thus, there was insufficient evidence to require an instruction on the right to administer reasonable corporal punishment.
IV
DEFICIENT PERFORMANCE BY DEFENSE COUNSEL
Defendant contends that his trial counsel rendered constitutionally ineffective assistance in seven specified respects. Alternatively, he contends that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing.
A. Ineffective Assistance of Counsel.
1. General legal principles.
“To establish ineffective assistance of counsel, defendant must show both (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced the defense. [Citations.]” (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.)
“... ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.)
2. Asserted instances of ineffective assistance.
a. Failure to bring a motion to set aside the information.
i. Additional factual and procedural background.
At the end of the preliminary hearing, defense counsel argued that there was insufficient evidence of child endangerment because there was no evidence that defendant had care or custody of the children.
The prosecutor responded that it was inferable that defendant had care and custody and concluded, “The fact that he stabbed a dog in the home while the children were present... is sufficient....”
The magistrate ruled, “I don’t think it’s the stabbing of the dog while the children are home. That, to me, isn’t what makes a 273a(b). What makes a 273a(b) is I have a 10-year-old who’s responsible for three other children, and there’s no adult supervision....” (Capitalization omitted.)
The magistrate also ruled, “[F]or purposes of prelim, based upon the fact that he’s referred to as stepfather, resides at the residence... — that... would indicate a care-and-custody relationship....”
ii. Analysis.
Defendant argues that defense counsel should have filed a motion to set aside the information (Pen. Code, § 995), because the magistrate rejected the theory that stabbing the dog constituted child endangerment, and there was insufficient evidence to support the theory that leaving the children home alone constituted child endangerment.
“To prevail on a motion to dismiss made pursuant to [Penal Code] section 995, ‘a defendant must show that, in light of the evidence presented to the grand jury or the magistrate, he or she was indicted or committed “without reasonable or probable cause” to believe that he or she was guilty... ’ of the charged crime. [Citation.] ‘“‘“Reasonable or probable cause” means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. “Reasonable and probable cause” may exist although there may be some room for doubt.’”’ [Citation.]” (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818.)
Misdemeanor child endangerment can be committed in several alternative ways:
1. “[W]illfully caus[ing] or permit[ting] any child to suffer, or inflict[ing] thereon unjustifiable physical pain or mental suffering”;
2. “[H]aving the care or custody of any child, willfully caus[ing] or permit[ting] the person or health of that child to be injured”; or
3. “[H]aving the care or custody of any child, ... willfully caus[ing] or permit[ting] that child to be placed in a situation where his or her person or health may be endangered....” (Pen. Code, § 273a, subd. (b).)
Contrary to the magistrate’s conclusion, stabbing the dog, under the circumstances of this case, could be seen as willfully causing a child to suffer unjustifiable mental suffering. Jack was C.’s own pet. C. heard Jack “screaming.” C. inferably would have felt responsible because he lost control of Jack (or even, according to Sarah, let him in the house). He was still crying even after he got to school.
Some of these facts — e.g., that Jack was C.’s pet — were not in evidence at the preliminary hearing. Nevertheless, if a motion to set aside the information had been granted, the People could have refiled the information and could then have supported it with all of the evidence that eventually came in at trial. Thus, defendant was not prejudiced by the failure to file a motion to set aside the information.
Moreover, contrary to defendant’s contention, leaving a child home alone can constitute child endangerment. In People v. Sutton (1976) 65 Cal.App.3d 341, an officer received a report of “‘small children left alone.’” (Id. at p. 345.) He arrived at the defendant’s apartment around 2:00 a.m. When he knocked, no one came to the door. (Ibid.) After he had been there “for a substantial period of time” (id. at p. 349) — long enough to check other apartments — the defendant came home. (Id. at p. 345.) The appellate court held that the officer had probable cause to arrest the defendant for child endangerment. (Id. at p. 348.)
Defendant argues that there was no evidence as to how long the children were left alone. C. ultimately testified, however, that he regularly babysat his brothers for two or three hours at a time. This was sufficient to raise at least a strong suspicion that they were endangered.
Defendant also argues “that there was no evidence that it was even [defendant] who left the children alone, as opposed to their mother.” This appears to restate the “care and custody” argument that defense counsel raised — unsuccessfully — at the preliminary hearing. There was ample evidence that defendant was the father figure in the household and was responsible for disciplining the children. Moreover, as C. babysat regularly, it is inferable that defendant did not somehow mistakenly think that Sarah was at home with the children.
b. Failure to investigate by listening to taped telephone calls.
i. Additional factual and procedural background.
When voir dire was about to start, defense counsel advised the court that he had recently received “20-plus hours” of tape-recorded telephone calls between defendant and his girlfriend (i.e., Sarah). He had already “spent a few hours trying to go over those calls.”
Defense counsel explained that, one day earlier, he had explained to defendant that he could request a continuance to review the tapes. Defendant had chosen not to do so. Defense counsel had therefore declared himself ready to go to trial. Defendant confirmed this: “... I chose to exercise my right to advance the speedy trial....”
Defendant himself then requested a continuance. Defense counsel said, “[T]his is solely on [defendant’s] behalf, your Honor. I have no say one way or the other on it.”
The trial court denied a continuance. It stated, “The opportunity to request a continuance was at master calendar call and when you answered ready, ... I’m satisfied that discussion took place at that time and the choice was made to go forward.”
ii. Analysis.
Defendant argues that defense counsel failed to perform a reasonable investigation. He also claims that defense counsel argued against his own request for a continuance.
It does not appear that defense counsel failed to listen to the taped calls promptly. Rather, they did not become available until the eve of trial. Defense counsel explained to defendant that listening to the tapes would have required a continuance. Defendant chose to insist on his speedy trial rights. Now, he argues that his counsel should have listened to the tapes. This scenario shows “buyer’s remorse, ” not ineffective assistance.
As there were no grounds for a continuance, defense counsel was not required to back up his client’s request for one.
Also, alternatively, the record does not show what was in the phone calls. Thus, defendant cannot show prejudice.
c. Reserving opening statement.
Defense counsel reserved his opening statement until after the prosecution had rested.
Defendant concedes that this is generally “permissible, ” but he argues that it constituted ineffective assistance in this case, because the “explanation of the defense came too late.”
“The decision whether to reserve opening statement is a matter of trial tactics and strategy that a reviewing court generally may not second-guess. [Citation.]” (People v. Davenport (1995) 11 Cal.4th 1171, 1237.) There can be sound reasons to reserve opening statement — most notably, so the defendant can postpone deciding whether to take the stand until after he or she has heard the prosecution’s entire case. Because the record does not reveal why defense counsel elected to reserve opening statement, defendant’s claim must fail.
d. Failure to object to evidence that defendant had previously hit C.
Defense counsel did not object to C.’s testimony that defendant had hit him with a ruler and a belt.
As we already held in part III.B, ante, this evidence was admissible under Evidence Code section 1109. Hence, the failure to object to it could not constitute ineffective assistance.
e. Failure to request an instruction on the right to use moderate corporal punishment for the purpose of discipline.
Defendant contends that his counsel’s failure to request an instruction on the right to administer reasonable corporal punishment constituted ineffective assistance.
Not so, because, as we also held in part III.B, ante, there was insufficient evidence to require such an instruction.
f. Deficient examination of Sarah.
Defendant contends that his trial counsel’s examination of Sarah was deficient. Noting that she could be impeached with her statements to the police and to the social worker, he argues that defense counsel either should not have called her at all or should have asked her to explain these contradictions. He also argues that his counsel failed to raise certain objections to her cross-examination and failed to rehabilitate her.
Defense counsel could reasonably conclude that it was better to call Sarah and let her be impeached than to leave defendant with no defense at all. The notion that he should have asked her to explain her conflicting statements presupposes that she had some convincing explanation. She did, to some extent, explain her statements to the social worker by claiming that she was under “duress” — apparently meaning that she thought her children would be taken away from her unless she said what the police wanted her to say. On redirect, defense counsel did attempt to clarify this, but the trial court sustained the prosecutor’s objection. Defendant does not explain what else his counsel should have done to rehabilitate her.
“‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffectiveness assistance.’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 233.) Defendant complains that his trial counsel should have objected to the question, “And now you’re coming in here today and you’re telling us another story... ?” as argumentative. He could have reasoned, however, that Sarah would be able to hold her own (as indeed she was). He also complains that defense counsel failed to object to questions about whether defendant had previously killed a cat. Sarah, however, adamantly denied talking to the social worker about a cat, and added that “[t]he cat didn’t die.” In other words, her responses tended to help defendant. When the prosecutor attempted to delve more deeply into what happened to the cat, defense counsel did, in fact, object on relevance grounds. Thus, it does not appear that a relevance objection, if raised earlier, would have been successful. None of this shows either unreasonable representation or prejudice.
g. Failure to object to prosecutorial misconduct in closing argument.
Defendant contends that his trial counsel failed to object when the prosecutor stated falsely in closing argument that C. saw defendant take Jack in the house.
The prosecutor argued, “And C. told you that Jack started to run off, and the defendant got mad and saw that Jack was running out, and he picked up Jack by the leg and pushed him down on the ground and then grabbed Jack and took him inside the garage and into the house....” (Italics added.)
She also noted that Jack’s leg was dislocated or broken, then argued, “And that’s consistent with C. saying that when the defendant came outside that morning he was pissed off that the dog was out of the kennel and running towards him, and he grabbed that dog by the leg, pushed him down, picked him up, and carried him through the garage into the bedroom.” (Italics added.)
Defense counsel did not object to these statements. Moreover, they did technically misstate C.’s testimony.
It was reasonably inferable, however, from the sequence of events that defendant did bring the dog in the house. C. testified that defendant got angry with the dog and threw it to the ground. The next thing C. knew, both defendant and the dog were in the bedroom, and defendant was killing the dog. It was most unlikely that the dog managed to get inside on his own; he had already drawn defendant’s attention, and there was ample evidence that defendant did not allow him in the house. Whether C. actually saw defendant take the dog in the house was an extremely minor point with very little relevance. Thus, defense counsel could reasonably choose not to object.
We therefore conclude that defendant has not shown any ineffective assistance by his trial counsel.
B. Breakdown of the Adversarial Process.
There is one way to show that representation was so deficient as to violate the Sixth Amendment, even in the absence of prejudice. “[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice [is] required....” (United States v. Cronic (1984) 466 U.S. 648, 659 [104 S.Ct. 2039, 80 L.Ed.2d 657].) “Defendants, ” however, “have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage.” (In re Visciotti (1996) 14 Cal.4th 325, 353.)
We have already rejected defendant’s claims of ineffective assistance of counsel. In each instance, our conclusion was not based on defendant’s failure to show prejudice; rather, it was based on the fact that defendant could not show objectively unreasonable representation. Even when all of these instances are viewed collectively, rather than individually, defendant has not shown that counsel’s performance was deficient. A fortiori, he has not shown that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing. Counsel was never absent nor prevented from representing defendant.
V
SENTENCING ERROR
On our own motion, we have identified a defect in the sentence: Defendant was sentenced on an enhancement that the jury had not found true and that he had not admitted.
A. Additional Factual and Procedural Background.
In addition to the strike priors, the information alleged one 1-year prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).)
After the jury returned its verdict, defendant was asked if he wanted to admit the prior conviction allegations. The prosecutor interjected: “[A]s to the prior offense... that’s alleged as a prison prior, and I think it is inaccurately alleged, so... the People would be moving to dismiss the prison prior that is alleged....” Defendant accordingly admitted the strike priors, but he did not admit the prior prison term enhancement.
The trial court, however, never expressly dismissed the prior prison term enhancement. Moreover, the minute order mistakenly stated that defendant had admitted the prior prison term enhancement. The probation report similarly stated that defendant had been “convicted” of the prior prison term enhancement. (Capitalization omitted.)
At sentencing, the trial court imposed a one-year term on the prior prison term enhancement. Neither the prosecutor nor defense counsel pointed out any problem.
B. Analysis.
An enhancement cannot be imposed unless it has been either admitted or found true. (Pen. Code, § 1170.1, subd. (e).) This rule applies to a prior prison term enhancement. (Pen. Code, § 667.5, subd. (d).) Here, defendant never admitted the prior prison term enhancement, and a trier of fact never found the enhancement true. Hence, the one-year term constitutes an unauthorized sentence, which may be corrected at any time, regardless of whether the defendant raised the error below. (See generally People v. Scott (1994) 9 Cal.4th 331, 354.) We will correct it by modifying the judgment.
VI
DISPOSITION
The judgment with respect to conviction is affirmed. The judgment with respect to sentence is modified by striking the one-year term imposed on the prior prison term enhancement. (See part V, ante.) As a result, the total prison term becomes six years. The trial court is directed to amend the sentencing minute order and the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the
Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
NOT TO BE PUBLISHED
We concur: McKINSTER, Acting P.J. MILLER J.
“The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically, other instances of child abuse.
“‘Domestic violence’ means abuse committed against a child living with the defendant.
“‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt.
“A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit child abuse as charged here.
“If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count 2. The People must still prove the charge beyond a reasonable doubt.”