People v. Avila

• Decision Date: 30 June 1993
• Docket Number: No. B064818,B064818
• Citation: 20 Cal.Rptr.2d 867,16 Cal.App.4th 1489
• Parties: Previously published at 16 Cal.App.4th 1489, 21 Cal.App.4th 1342, 27 Cal.App.4th 379, 32 Cal.App.4th 874 16 Cal.App.4th 1489, 21 Cal.App.4th 1342, 27 Cal.App.4th 379, 32 Cal.App.4th 874 The PEOPLE of the State of California, Plaintiff and Respondent, v. Jaime AVILA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 867

20 Cal.Rptr.2d 867

Previously published at 16 Cal.App.4th 1489, 21 Cal.App.4th 1342, 27 Cal.App.4th 379, 32 Cal.App.4th 874

16 Cal.App.4th 1489, 21 Cal.App.4th 1342, 27 Cal.App.4th 379,

32 Cal.App.4th 874

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jaime AVILA, Defendant and Appellant.

No. B064818.

Court of Appeal, Second District, Division 7, California.

June 30, 1993.

Review Granted Sept. 16, 1993.

Review Transferred to the Court of Appeal March 23, 1995.

[16 Cal.App.4th 383] Lisa M. Bassis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Appellant, Jaime Avila, appeals from a judgment of conviction for the unlawful driving or taking of an automobile in violation of Vehicle Code section 10851, subdivision (a). We affirm the judgment of conviction but modify the sentence to conform to the legislative scheme effective January 1, 1993, for punishment of violations of that statute.

FACTS AND PROCEEDINGS BELOW

In the early morning hours of July 27, 1991, Lewis Barker parked his 1990 Honda automobile on a street in Cerritos. The next morning he discovered the car was gone and reported it stolen to the police.

During the evening of July 28, 1991, the police observed appellant commit a moving violation in a 1990 Honda. A routine check revealed the car had been reported stolen. The officer gestured to the driver to pull over but the driver instead sped up and made a quick turn onto a side street. As the car turned the corner it was momentarily out of the officer's sight.

The officer visually identified appellant as the driver of the car.

As the officer followed appellant onto the side street, he saw appellant standing near the driver's side of the Honda which was now parked at the curb. Some people were standing in front of the house where the Honda was parked, including one James Perkins who was well known to the police. Appellant was arrested and taken into custody.

Appellant testified in his own defense at trial. He claimed he and his wife had been at that house for over an hour visiting a female friend. He testified he and Perkins were leaving the house to go out for a drink when he was arrested. In rebuttal, the officer testified no woman identifying herself as either appellant's wife or friend inquired after appellant's welfare at the scene.

In an amended information, appellant was charged with the unlawful driving or taking of an automobile (Veh.Code, § 10851, subd. (a)). The information also alleged appellant had suffered five prior felony convictions for robbery, burglary, attempted grand theft and two for possession for sale of a controlled substance.

Trial was to a jury which found him guilty as charged. Trial of the prior felony conviction allegations was bifurcated and tried to the court sitting without a jury. The court found true the allegations appellant had served two prior prison terms (Pen.Code, § 667.5, subd. (b)) and added two years to the mid-term of three years imposed for the conviction for unlawful driving or taking of an automobile (Veh.Code, § 10851, subd. (a)).

Appellant appeals from the judgment of conviction and sentence.

DISCUSSION

I. APPELLANT'S CASE WAS NOT PREJUDICED BY HIS COUNSEL'S ALLEGED INEFFECTIVENESS.

Appellant alleges he was denied effective assistance of counsel because counsel failed to object and request an admonition when the prosecutor asked whether he had a prior conviction for possession for sale of a controlled substance in violation of the trial court's ruling.

"Defendant bears the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839; see also People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144; Strickland v. Washington (1984) 466 U.S. 668, 687-696, 104 S.Ct. 2052, 2064-2069, 80 L.Ed.2d 674.) When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' (People v. Pope, supra, 23 Cal.3d at p. 426 [152 Cal.Rptr. 732, 590 P.2d 859] ), the contention must be rejected." (People v. Haskett (1990) 52 Cal.3d 210, 248, 276 Cal.Rptr. 80, 801 P.2d 323.)

Prior to appellant's testimony defense counsel requested a ruling which would limit the prosecution's use of appellant's prior convictions for impeachment purposes. Counsel argued to exclude appellant's 1983 convictions as being too remote in time, but conceded the propriety of impeachment for the 1987 conviction. The trial court disagreed the 1983 convictions were too remote given appellant's continuing criminal activity. The court, nevertheless, exercised its discretion to prevent impeachment on appellant's convictions for possession for sale of controlled substances because the arresting officer had testified the area where appellant was arrested was a "heavy narcotics area."

Specifically, the trial court ruled: "Possession for sale of a controlled substance, since there has been testimony in regard to this being a narcotic hangout, it might be detrimental to the defendant. [p] I might be more inclined to limit it to the robbery, to the burglary, and to the attempted grand theft property, but those obviously deal with moral turpitude. I find them recent by way of time. I don't find them similar to the charges against the defendant, save and except maybe the grand theft and burglary, as being a theft, but notwithstanding that, they're not directly related, so in the weighing process, the court would allow impeachment for the robbery, the burglary, and the attempted grand theft."

On cross-examination the prosecutor asked appellant whether he had been convicted of the felonies deemed proper impeachment by the court, as well as whether he had been convicted of possession for sale of a controlled substance. Appellant answered in the affirmative to each question. Defense counsel did not object and did not request the trial court to admonish the jury.

Whether intentional or inadvertent (People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396), it is misconduct for a prosecutor to elicit evidence in violation of clear trial court rulings. (People v. Bonin (1988) 46 Cal.3d 659, 689, 250 Cal.Rptr. 687, 758 P.2d 1217.) However, failure to object and request an admonition in the trial court precludes review of the alleged misconduct on appeal unless an admonition would not have cured the harm caused by the misconduct. (People v. Haskett, supra, 52 Cal.3d at p. 244, 276 Cal.Rptr. 80, 801 P.2d 323; People v. Price (1991) 1 Cal.4th 324, 447, 3 Cal.Rptr.2d 106, 821 P.2d 610.) Because the alleged misconduct in this case is not reviewable, appellant contends he was denied effective assistance of counsel by counsel's failure to object to the improper question. The reason for counsel's omission does not appear in the record. Appellant's claim of ineffective assistance of counsel may therefore be rejected out of hand. (People v In any event, appellant has not demonstrated how the result might have been more favorable to him had counsel objected. In the absence of a showing of prejudice from the alleged omission, a claim for ineffective assistance of counsel is also properly rejected. (People v. Pensinger (1991) 52 Cal.3d 1210, 1276, 278 Cal.Rptr. 640, 805 P.2d 899.)

Haskett, supra, 52 Cal.3d at p. 249, 276 Cal.Rptr. 80, 801 P.2d 323.)

First, the effect of appellant's admission of a prior felony conviction for possession for sale of a controlled substance was effectively neutralized by trial court. Immediately after appellant admitted the prior felony convictions, the trial court instructed the jury on the limited purpose for which they could consider this testimony. The trial court instructed the jury: "The fact that a witness has been convicted of a felony, if such be a fact, it may be considered by you only for the purpose of determining the believability of that witness...."

Secondly, appellant offered a neutral reason for being in the neighborhood. He testified he often spent time in that neighborhood because he was born and raised there and still had many friends living in the area.

Third, the evidence did not suggest appellant went to that area or house to buy or sell drugs but drove there in an attempt to avoid police detection and to blend into the group of people usually milling about that residence.

Fourth, because appellant was impeached concerning his prior convictions for burglary, robbery and grand theft, the additional impeachment concerning his drug related conviction did not have a significant material impact in the prosecution for a wholly unrelated theft crime.

Finally, because of the foregoing reasons and because the evidence against him was so strong, we do not believe it is reasonably probable the result would have been more favorable had counsel objected to the prosecutor's question concerning the prior drug...