THE PEOPLE v. GARY GLENN WALKER JR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. GARY GLENN WALKER, JR., Defendant and Appellant.

F056177

Decided: February 11, 2010

Hayes H. Gable III, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Defendant Gary Glenn Walker, Jr. was convicted of felony hit and run resulting in injury, and various misdemeanors.   On appeal, he contends (1) the trial court misadvised him regarding the consequences of withdrawing his request for bifurcation, and defense counsel was ineffective for failing to object to evidence of his prior convictions;  (2) defense counsel provided ineffective assistance by failing to provide proof at trial that defendant was authorized to use medical marijuana;  and (3) the trial court erred when it failed to instruct on one of the elements of giving false information to a peace officer.   We will affirm the judgment.

PROCEDURAL SUMMARY

On August 25, 2008, the Kings County District Attorney charged defendant with evading a peace officer (Veh.Code, § 2800.1, subd. (a);  count1);  failure to appear (Veh.Code, § 40508, subd. (a);  count 2);  hit and run resulting in injury (Veh.Code, § 20001, subd. (a);  count 3);  resisting a peace officer (Pen.Code, § 148, subd. (a)(1);  count 4);  unlawful possession of marijuana while driving (Veh.Code, § 23222, subd. (b);  count 5);  and giving false identification to a peace officer (Pen.Code, § 148.9, subd. (a);  count 6).   As to count 3, the sole felony count, the information further alleged that defendant had suffered prior convictions for transportation or sale of a controlled substance (Health & Saf.Code, § 11352, subd. (a)) and possession of drugs in a penal institution (Pen.Code, § 4573.8), had served prison terms for them, and had not remained free of prison custody pursuant to Penal Code section 667.5, subdivision (b).

Defendant's request for bifurcation of the prior convictions was granted and a jury was empaneled to hear the case.   The next day, on August 26, 2008, defendant withdrew his request for a bifurcated trial on the prior convictions and stated his intention to testify.   The court granted the prosecution's motion to dismiss count 1. On August 27, 2008, the jury found defendant guilty as charged and found true the prior conviction allegations.

The trial court sentenced defendant to a total of four years in prison, as follows:  the upper term of three years on count 3;  concurrent terms of 180 days on counts 2, 4 and 6;  a $100 fine on count 5;  and a one-year term on the prior conviction finding pursuant to Penal Code section 667.5, subdivision (b) (the court stayed a one-year term on the other prior conviction finding).

The 2005 Incident-Counts 1 and 2

On December 21, 2005, C. was driving after dark with her windows partially rolled down.   A black or blue Chevrolet Caprice stopped next to her and males inside the car started yelling profanities at her.   Panicked, she rolled up her windows and called her husband, who told her to drive to her brother-in-law's house, about one and one-half miles away.   The Caprice followed her there.   Her brother-in-law was waiting for her and he called the police when she arrived.   As C. was describing the incident to the officers about an hour later, the Caprice drove by again.   She pointed it out and the officers got in their patrol vehicles and pursued the Caprice.

An officer caught up to the Caprice and turned on his lights.   There were no other vehicles on the road, but the Caprice did not pull over.   The officer turned on his siren and still the Caprice did not stop.   Instead, it sped up to about 35 miles per hour in the 25-mile-per-hour residential zone.   After about one-half mile, it pulled over and several officers ordered defendant out at gunpoint.   Two other males were in the car.   Defendant, who had been driving, explained that he did not stop immediately because he did not see the lights or hear the siren.   The officer cited defendant for misdemeanor evading a pursuing officer, pursuant to Vehicle Code section 2800.1.   Defendant was cooperative and signed the citation, which instructed him to appear in court on a certain date.   A court minute order, however, established that defendant failed to appear and a $25,000 bench warrant was issued.

The 2006 Incident-Count 3

On June 19, 2006, at about 5:00 p.m., G. went to her babysitter's house to pick up her children, who were two, six and seven years old.   G. parked across the street from the babysitter's house.   G.'s six-year-old girl ran into the street toward G.'s vehicle and, as she did, she was hit by a passing vehicle.   The girl fell to the ground, screaming and crying.   G. ran to her.   Defendant, the driver of the car, stopped immediately, got out and told G. he was sorry.   He said he had to leave.   G. asked him to wait until the police came, but he insisted that he had to leave.   He said he had children.   When G. took the girl inside the babysitter's house, defendant moved his car down the street.   G. wrote down defendant's license plate number.   She thought defendant would come back and talk to her again, but after a few minutes he drove away.   He had not given anyone his name or telephone number.   The ambulance and the police arrived shortly after defendant left, and G. gave the officers his license plate number.   The girl suffered scrapes and a lump on her head.   She complained of pain for about one week.

Around the time of the accident, M. was driving to her brother's house on the same street to pick up her children.   When she parked her car, she saw a silver Chrysler driving down the street.   She heard a sound and looked up to see a girl lying in the street by the Chrysler.   M. immediately called the police on her cell phone.   When defendant got out of the Chrysler, she recognized him.   He was her husband's friend and she knew him as “G Money.”   Defendant called to her by name and asked her not to call the police.   She tried not to make eye contact with him.   She saw him approach G. and heard him tell her he could not stay because he was “on the run.”   M. went inside to tell her brother what had happened.   She was scared.   After about 20 minutes, she went back outside and saw defendant leaving.   The police had not arrived yet.

M. was afraid to testify because she had received many threatening calls.   The callers told her she should say she saw defendant giving G. information.   Others told her not to go to court.   But she had children of her own and hoped someone would do the same for her.   She was escorted to court by police.

In response to M.'s call to the police at 5:03 p.m., an officer was dispatched to the accident scene.   He responded with lights and siren, arriving at about 5:06 p.m. The officer testified that M.'s estimate of 20 minutes was incorrect.   Police records verified that he arrived three minutes after her call.   An ambulance was already there, and 15 to 20 people were present.   The officer interviewed M. and G. No one else approached the officer to offer any information.   G. described the vehicle as a silver Chrysler four-door sedan and provided its license plate number.   M. told the officer she knew who the driver was.

The officer determined that the license plate number was registered to a Cadillac, not a Chrysler.   The next morning, he went to the address of the registered owner of the license plate number, who was also the mother of defendant's children.   She acknowledged that she had sold her Cadillac, but it apparently was not transferred out of her name.   She could not explain how the license plate was now affixed to a Chrysler.   The officer left and walked around the back of the residence to the alley, where he found a silver Chrysler, bearing a different license plate, this one properly registered to the Chrysler.   He examined the vehicle for signs of damage that might be consistent with the accident and found a four-inch indentation on the hood that appeared to be fresh.   The vehicle was otherwise in very good condition.   The officer processed the hood and found a child's fingerprints.   The fingerprint powder also adhered to the indentation, suggesting it had been caused by contact with a person.

The officer contacted G. and asked her to look at the vehicle.   She identified it as the vehicle that hit her daughter.

The officer compiled a photographic identification lineup and showed it to both G. and M.M. identified defendant as the driver, but G. could not.   M. identified defendant by his nickname.

The 2008 Incident-Counts 4, 5 and 6

On May 23, 2008, at about 6:20 p.m., an officer noticed a Toyota Corolla.   He was aware that Corollas from the late 1980's and early 1990's were the most frequently stolen car in the country, so he ran a check of the license plate number.   He learned that the license number had not been registered since October 2007.   He concluded the license plate was displaying a false sticker, a felony violation.   He conducted an enforcement stop and the Corolla slowly pulled into a parking lot.   The officer approached defendant, who was the driver and sole occupant, and asked him for his license, registration and insurance information.   The officer noticed a strong odor of marijuana emanating from inside the vehicle.   Defendant stuttered a bit and stalled.   While he fumbled for something, the officer asked defendant how much marijuana he had in the car.   Defendant said he was allowed to have it.   He said he had a medical marijuana card and he could smoke and drive.   Defendant gave the officer a California identification card in the name of Richard Miles.   He did not produce a driver's license because he said his license was not good.   The officer could see marijuana and a large amount of cash inside the Corolla, so he asked defendant to exit the vehicle.   As the officer walked defendant to the patrol vehicle, he asked defendant if he had a medical marijuana card, a physician's note, or anything allowing him to possess the marijuana.   Defendant said he did not have anything with him.   Defendant repeatedly asked the officer why he had stopped him.   He said the officer had no reason to stop him and he used profanities to accuse the officer of being a racist.   The officer told defendant he stopped him for his registration.

After detaining defendant in the patrol vehicle, the officer returned to the Corolla and found a smoking device and a usable quantity of marijuana (but less than an ounce) in two containers.   Some people approached the scene, so the officer called for backup.   Intending to arrest defendant, he asked him to exit the patrol vehicle, turn around and place his hands on top of his head.   Defendant did get out, but then he took off running.   The officer followed and yelled twice at him to stop, but he continued running.   The officer called dispatch and reported the escape or “leg bail” of a detainee.

Following the arrival of backup, a boy approached the officer and told him that defendant had entered a nearby residence.   Officers forced their way in and found defendant hiding in a closet.

The officer asked defendant why he had run from him.   Defendant just repeated that the officer had no right to stop or arrest him.   As the officer filled out the booking forms at the jail, defendant's hesitations to the officer's questions raised his suspicions.   Eventually, defendant revealed that the identification card belonged to his friend, and defendant's real name was Gary Walker.

Defense Evidence

Defendant testified on his own behalf.   He admitted he had been convicted in 1993 of possessing cocaine for sale, in violation of Health and Safety Code section 11352.   He pled guilty and was sentenced to 10 years four months.   While he was imprisoned on that felony, he was convicted of possessing marijuana in prison.   Again, he pled guilty.   He was released on parole in June 1999.   He violated parole twice, he thought, and was returned to custody.   He had since been released from parole.   He had never been convicted of any other felonies and he had not been convicted of any crimes involving theft or dishonesty.

Defendant explained that on June 19, 2006, the day of the accident, he was driving his wife's Chrysler.   He and his wife were separated, but they were trying to work out their problems and get back together.   That day, he left his wife's residence to go to the store for dinner items.   As he was driving 20 to 25 miles per hour in the residential area, he saw in his peripheral vision a child run into the street and into the side of his car.   He stopped immediately and got out of the car.   He asked G. if the girl was okay.   He said he was sorry and told her that he had a daughter too.   G. did not respond and appeared to be angry.   She walked away with the girl and defendant followed.   He could not see any injuries on the girl.   After G. and the girl went into the house, the Spanish-speaking babysitter repeatedly told defendant it was not his fault.   G. did not come back outside and defendant did not speak to her again.

When he got out of his car, he saw M. He had known her for several years.   She was about 20 feet from him.   He called her name twice, but she did not respond.   She was walking away and talking on the phone.   He asked her if she was calling the police.   She went inside without responding.

Defendant's car was blocking traffic in the middle of the street so he moved it to the side.   He returned to the yard and now a lot of people had gathered.   No one but the babysitter spoke to defendant.   She kept trying to calm him down.   He asked if they would like to go to the hospital.   He did not know how serious the girl's injuries were.

He did not know what to do because no one was telling him what he should do, so he left about 10 or 15 minutes after the accident.   He was concerned for the girl and he knew she might be hurt, but the babysitter told him she was okay.   Defendant admitted he told someone he was “on the run.”   He had a warrant for a misdemeanor traffic violation.   He saw M. as he left, but he did not see an ambulance or a police car.   When he left, he believed the girl was okay.

Defendant went back to his wife's house and parked in the driveway.   He stayed at her house.   He believed she moved the car into the alley the next day.   He knew nothing about the license plates;  he did not change them.

On cross-examination, defendant clarified that he was imprisoned in 1993 and was released on parole in June 1999.   He had actually violated parole and been returned to custody four times-in 1999, 2000, 2002 and 2003.   He was finally discharged from parole in June 2003.   There was no period of five years before 2003 that he remained free of custody.

He admitted he was involved in the accident on June 19, 2006, when the girl ran out into the street.   He was not speeding and he did not believe the accident was his fault.   Nobody asked him to stay until the police came.   No one really said anything to him, other than the babysitter, who told him the girl was okay and it was not his fault.   He told the babysitter his name, but he did not leave an address or other contact information.   He was aware that M. knew who he was, but he had nothing to do with any threats against her.

DISCUSSION

I. Misadvisement on Bifurcation

Citing People v. Hill (1983) 141 Cal.App.3d 661, defendant contends the trial court misadvised him regarding the consequences of withdrawing his request for bifurcation.   He explains that the court failed to inform him he could maintain bifurcation and request that the court limit or “sanitize” the evidence to only the fact and nature of the prior convictions.   He says the evidence of his parole violations would not have been relevant or admissible if the trial had been bifurcated.   Alternatively, defendant maintains defense counsel was ineffective for failing to take steps to prevent the jury from hearing the prejudicial details of the prior convictions.   He asserts that count 3 must be reversed.

The truth of a prior conviction allegation need not “be determined by the jury at the same time it decides whether the defendant is guilty of the charged offense,” and a trial court has discretion to bifurcate the issue of the truth of a prior conviction allegation from the remainder of the trial.  (People v. Calderon (1994) 9 Cal.4th 69, 74-75.)   A jury's determination of the truth of a prior conviction allegation at the same time it determines the defendant's guilt “often poses a grave risk of prejudice.”  (Id. at p. 75.)   Therefore, “the denial of a defendant's timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendant's guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant.”  (Id. at pp. 77-78.)

But bifurcation “is not required in every instance.   In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendant's guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant.   Perhaps the most common situation in which bifurcation ․ is not required arises when, even if bifurcation were ordered, the jury still would learn of the existence of the prior conviction before returning a verdict of guilty.   For example, when the existence of the defendant's prior offense otherwise is admissible to prove the defendant committed the charged offense-because the earlier violation is an element of the current offense [citations] or is relevant to prove matters such as the defendant's identity, intent, or plan [citations]-admission of the prior conviction to prove, as well, the sentence enhancement allegation would not unduly prejudice the defendant.   Similarly, when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant.   Under such circumstances, a trial court would not abuse its discretion in denying a defendant's motion for bifurcation.”  (People v. Calderon, supra, 9 Cal.4th. at p. 78, fns. omitted.)

Here, we need not rehash the lengthy discussion that occurred in court regarding defendant's decision whether to bifurcate.   Instead, we conclude that any error in the court's advisement was harmless because the evidence was either admissible in a bifurcated trial, or any error in its admission was not prejudicial.  (People v. Watson (1956) 46 Cal.2d 818, 836;  Chapman v. California (1967) 386 U.S. 18, 24.)

First, we are confident the trial court would properly have allowed evidence of defendant's conviction for transportation or sale of cocaine to impeach defendant if he testified in a bifurcated trial-and the court essentially stated it would do so.   The crime involved moral turpitude (People v. Navarez (1985) 169 Cal.App.3d 936, 949 [violation of Health & Saf.Code, § 11352 involves moral turpitude];  People v. Castro (1985) 38 Cal.3d 301, 317 [possession for sale of heroin involves moral turpitude] ), and therefore constituted proper impeachment evidence (Evid.Code, § 788;  People v. Harris (2005) 37 Cal.4th 310, 337 [past criminal conduct involving moral turpitude with some logical bearing on the veracity is admissible to impeach, subject to the court's discretion under Evid.Code, § 352];  People v. Wheeler (1992) 4 Cal.4th 284, 295 [misconduct involving moral turpitude may suggest a willingness to lie and therefore is relevant to a witness's honesty and veracity];  People v. Castro, supra, at p. 314 [a prior felony conviction is admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude, which is a “ ‘readiness to do evil’ ”] ).

As for the second prior conviction, even if we assume possession of drugs in prison can be likened to simple possession, which does not necessarily involve moral turpitude and might not be proper impeachment evidence (People v. Castro, supra, 38 Cal.3d at p. 317 [simple possession of heroin] ), we nevertheless conclude its admission was entirely harmless.   By virtue of evidence of the first prior conviction, the jury already knew defendant had possessed drugs, and the fact that he possessed marijuana in prison had no particularly prejudicial effect.

Third, we disagree that the parole violations would have been “wholly irrelevant” and therefore inadmissible if defendant's trial had been bifurcated.   His repeated offenses (their specifics unrevealed) showed that defendant had not “led a legally blameless life” since 1999 (see People v. Mendoza (2000) 78 Cal.App.4th 918, 926) and suggested “ ‘a pattern that [was] relevant to [his] credibility’ ” (People v. Green (1995) 34 Cal.App.4th 165, 183).   Furthermore, the evidence was relevant to his motive to leave the scene of the accident and to flee when the officer attempted to arrest him.   He had been imprisoned repeatedly and was motivated to avoid a return to custody.   (See, e.g., People v. Scheer (1998) 68 Cal.App.4th 1009, 1020, fn. 2 [service of a prison term is highly probative to show a motive to flee apprehension for the current crime, i.e., to avoid service of future additional prison time].)

Fourth, we note that the evidence was not unduly prejudicial.   Neither party introduced inflammatory details or descriptions of the prior convictions or parole violations.   Thus, the evidence was properly admitted pursuant to Evidence Code section 352.

Finally, we conclude that the evidence against defendant on each count was overwhelming.

For these reasons, we also conclude defense counsel's failure to object to this evidence, or to pursue bifurcation, did not constitute ineffective assistance of counsel.   A defendant claiming ineffective assistance of counsel has the burden of showing both deficient performance and prejudice.  (People v. Ledesma (1987) 43 Cal.3d 171, 215-218;  People v. Mendoza, supra, 78 Cal.App.4th at p. 924.)   Prejudice must be affirmatively proved.  “ ‘It is not enough for the defendant to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding․  The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”   (Ledesma, supra, at pp. 217-218.)

Here, the evidence was either admissible or any error in its admission was harmless.   And it is not reasonably probable that the trial court would have “sanitized” the evidence to eliminate unduly prejudicial facts because there simply were none.   Because defendant cannot show prejudice, he cannot show that defense counsel rendered ineffective assistance by failing to object to the evidence or pursue bifurcation.  (People v. Cudjo (1993) 6 Cal.4th 585, 626.)

II. Ineffective Assistance of Counsel

Defendant argues that defense counsel's failure to provide proof at trial that defendant was authorized to use medical marijuana constituted ineffective assistance.

Claims of ineffective trial counsel are more appropriately litigated in a habeas corpus proceeding.   Where, as here, the record does not show why defense counsel failed to act in the way defendant claims he should have, we must reject an ineffective counsel claim based only on the record on appeal.  (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)   A verified petition for habeas corpus allows a defendant to allege facts outside the appellate record to show that counsel's failure to object was not justified by a tactical choice or other legitimate reason, and thus might constitute ineffectiveness.  (See People v. Michaels (2002) 28 Cal.4th 486, 526;  People v. Anderson (2001) 25 Cal.4th 543, 569.)

The record on appeal does not show that defense counsel necessarily acted without a tactical reason.   For defendant to prevail on direct appeal, he has to show “no satisfactory explanation” for counsel's conduct (People v. Anderson, supra, 25 Cal.4th at p. 569), or that counsel “had no rational tactical purpose for his act or omission” (People v. Fosselman (1983) 33 Cal.3d 572, 581).   Defendant has not made such a showing on this record.

III. Instruction on Giving False Information to Officer

Lastly, defendant asserts that the trial court erred when it failed to instruct on one of the elements of a Penal Code section 148.9 violation, giving false information to a peace officer.   The People concede the error, but claim it was harmless.   Defendant insists the error is reversible per se.

“An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24.  [Citation.]  Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.  [Citation.] )”  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165, citing Neder v. United States (1999) 527 U.S. 1, 15.)

In this case, the trial court failed to instruct the jury on the purpose of defendant's act-that he gave false information to evade the process of the court or to evade his proper identification by the officer.   At trial, however, the evidence was uncontroverted that defendant gave the officer false identification so the officer would not be able to properly identify him and presumably arrest him.   Defendant did not testify to this offense and there was no evidence that defendant behaved as he did for any other reason.   Indeed, defendant's subsequent flight from the officer corroborated his desire to evade identification and arrest by the officer.   Defendant had been returned to custody repeatedly.   He was familiar with penal life and he was undoubtedly motivated to avoid it.   Moreover, it strains the limits of logic to believe that defendant gave a false name without intending to conceal his true identity from the officer.   No jury would reasonably believe that he did so accidentally, or for any reason other than to evade identification.

“In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.   We think it beyond cavil here that the error ‘did not contribute to the verdict obtained.’   [Citation.]”  (Neder v. United States, supra, 527 U.S. at p. 17, citing Chapman v. California, supra, 386 U.S. at p. 24.)

DISPOSITION

The judgment is affirmed.

Kane, J.

WE CONCUR:

Wiseman, Acting P.J.

Dawson, J.

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