THE PEOPLE v. BENNIE POWELLS

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. BENNIE B. POWELLS, Defendant and Appellant.

F062371

Decided: January 13, 2012

Jeff Cunan, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

Appellant, Bennie B. Powells, was charged in a criminal complaint filed on December 22, 2010, with making a criminal threat (Pen.Code, § 422, count one),1 and inflicting corporal injury on a cohabitant (§ 273.5, subd. (a), count two).   The complaint further alleged an enhancement for appellant's personal use of a deadly weapon (§ 12022, subd. (b)(1)).   On January 6, 2011, the court conducted an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).   The court denied the Marsden motion.

After a preliminary hearing on January 7, 2011, the prosecutor filed an information on January 12, 2011.   The allegations in the information were identical to those in the criminal complaint.

On March 15, 2011, a jury trial commenced.   That day, appellant made a second Marsden motion.2  Appellant asserted that the officer who was testifying at trial was not one of the two officers who took his statement, and his attorney would not subpoena the other officers.   Appellant argued the facts of the incident to the court, asserting that the victim hit him with her fist and cut his lip.

Defense counsel explained that if the officer was lying in his testimony, the jury would have the opportunity to give that testimony whatever weight it deserved.   Counsel had questioned the officer about appellant's alleged injury.   Concerning the subpoena of witnesses during trial, counsel pointed out that he had been asked by appellant to do so at the last second, and counsel had done everything necessary to prepare the case for trial.   Counsel would request that the prosecutor have the other officers ready to testify should counsel feel it was necessary to question them.   The court denied the Marsden motion.

At the conclusion of the jury trial, appellant was found guilty of felony abuse of a cohabitant, but was acquitted of making a criminal threat while using a deadly weapon.   On April 15, 2011, appellant was sentenced to prison for the midterm of three years.   Appellant was awarded actual custody credits of 117 days and conduct credits of 117 days, for total custody credits of 234 days.   Appellant filed a timely notice of appeal.   Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ).   We affirm the judgment.

Deborah C. testified that she lived with appellant in a dating relationship at the end of 2010 for about three months.   On December 17, 2010, the two were involved in an argument over the temperature setting of the thermostat and the front door being open.   Deborah and appellant had been drinking.   After 15 minutes, the verbal argument became physical.   Deborah denied slapping appellant's face or anywhere else on his person.   She also denied making any gesture like she was going to strike appellant with a closed fist or to threaten him with violence.

Appellant started pulling Deborah's hair, and then struck the left side of her face with his right hand.   Appellant struck her at least three times, but not more than five times.   One blow struck Deborah's eye and one was on her neck.   Deborah could not remember whether appellant's fist was closed when he struck her.   Deborah told appellant she turned the thermostat low so it would not come on when she opened the door, which she had done to clear the house of cigarette smoke.   Deborah thought the first blow knocked her to the floor and gave her a black eye.

Deborah started crying because appellant started to kick her.   Deborah was not sure what kind of footwear appellant was wearing, but he was wearing shoes.   Appellant was kicking Deborah in her upper ribs.   Deborah remembered appellant's assault lasting for 20 minutes.   After about two minutes, Deborah was still on the floor of the living room crying.   Appellant told Deborah he was going to kill her and he went into the kitchen.   Appellant came back from the kitchen with a knife.   Appellant pointed the knife at Deborah from a distance of about four feet.   Appellant threatened to kill Deborah three or four times.

Appellant had threatened Deborah in November, telling her he would kill her, but would do so painlessly.   Appellant had hit Deborah four or five times in the past.   The violence of appellant's attacks increased over time.   As a result of the attack, Deborah suffered bruising, a black eye, and had a limp.   Appellant would not let Deborah leave the house for a couple of days after the attack.   On December 20, 2010, Deborah saw a police car in front of their residence when appellant was gone and reported the attack to an officer.   An officer took pictures of Deborah's injuries and they were admitted into evidence at trial.

Tony Aguirre testified that he was appellant's friend and that appellant sometimes works for him as a handyman.   Appellant was arrested at Aguirre's business.   At the time of appellant's arrest, Aguirre saw that appellant had a split lip.   Appellant attributed the injury to a strike from Deborah.

Bakersfield Police Officer Alex Nikolich was approached by Deborah on December 20, 2010.   Her face was swollen on the left side, she was black and blue, and had a black eye.   Deborah was distraught and she was crying.   When Nikolich found appellant, he read him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436.   Appellant waived his rights and told Nikolich he and Deborah had been drinking.   Deborah struck appellant in the face with a closed fist and an altercation ensued in which he struck Deborah three or four times.   Nikolich saw no injury to appellant's lip.

Appellant testified that he had known Deborah for about five months prior to the incident.   Occasionally, she would push appellant and he would push her back.   On the day of the incident, appellant told Deborah that he had been having problems.   Appellant asked Deborah about messages that she was getting from people who were making claims that she had been around them.   Appellant told her he was having problems and asked Deborah if she had given him a sexually transmitted disease.   Deborah got “pissed off” at appellant.   Appellant was drinking his second 32–ounce can of Miller High Life when the argument began.

Appellant told Deborah he was having a burning problem during urination.   Appellant kept questioning Deborah about the sexually transmitted disease, causing her to become angry and upset.   Deborah “got really pissed” and slapped appellant.   This incident occurred on the front porch.   Appellant went back inside.   Deborah hit appellant in the mouth with a closed fist.   Appellant slapped Deborah once after Deborah gave appellant some “off-the-wall bull crap.”   Deborah grabbed appellant's arm.   He slapped Deborah again and pushed her away.

Appellant denied telling Deborah that he was going to kill her.   Appellant denied stomping on Deborah's body or kicking her.   Appellant denied pulling a knife on Deborah.   The entire incident lasted about 20 minutes.   The parties stipulated that a urinalysis of appellant conducted in December 2010 showed he had a sexually transmitted disease.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (Wende, supra, 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on August 19, 2011, we invited appellant to submit additional briefing.   Appellant replied with a letter brief challenging his appellate attorney's statement of facts, asserting that the witnesses against him at trial were not truthful in their testimony, and challenging his trial attorney's effectiveness.

We initially reject appellant's contention that his appellate counsel's statement of facts in the Wende brief filed on appellant's behalf is inaccurate.   We also reject appellant's attacks on the truthfulness of the witness testimony.   It was for the trier of fact, in this case the jury, to determine the veracity of each witness' testimony and the weight to accord that testimony in evaluating the case.   Appellant also complains about the in limine motions hearing involving hearsay statements and the presentencing report violating his rights.   These general contentions are not specific enough for us to discern what appellant contends his trial counsel failed to do.   The trial court granted most of defense counsel's in limine motions.

Appellant challenges trial counsel's effectiveness for some portion of his past record being used in the instant action.3  The trial court granted defense counsel's motion in limine to exclude reference to appellant's prior criminal convictions for impeachment purposes, even if appellant testified.   The prosecutor did not question appellant regarding his criminal record during cross-examination of appellant.   There was reference to appellant's past criminal record in the probation report.   Reference to that record was pursuant to the sentencing function of the trial court and it did not violate the motion in limine.

The probation report noted that appellant was on deferred entry of judgment when he committed the instant offense, and for that reason, the probation officer did not recommend probation in this case.   Appellant's trial counsel argued to the court that appellant's prior record was minimal and that he only had a few weeks left in the deferred entry of judgment program.   Counsel argued that the court should place appellant on probation, then, alternatively, that appellant should only get the mitigated term of two years.   We do not find trial counsel's conduct at the sentencing hearing deficient in any way.   Appellant has failed to demonstrate that his trial counsel's performance failed to meet professional standards, and, that even if it had, the result of the verdict would have been different in the absence of counsel's alleged ineffective representation.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. The first Marsden motion was directed to attorney Brian Foltz.   The second Marsden motion was directed to attorney Jano Mattaeo..  FN2. The first Marsden motion was directed to attorney Brian Foltz.   The second Marsden motion was directed to attorney Jano Mattaeo.

FN3. The defendant has the burden of proving ineffective assistance of trial counsel.   To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice.   A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.   Tactical errors are generally not deemed reversible.   Counsel's decisionmaking is evaluated in the context of the available facts.   To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation.   Prejudice must be affirmatively proved.   The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  (People v. Maury (2003) 30 Cal.4th 342, 389.)   Attorneys are not expected to engage in tactics or to file motions which are futile.  (Id., at p. 390;  also see People v. Mendoza (2000) 24 Cal.4th 130, 166.).  FN3. The defendant has the burden of proving ineffective assistance of trial counsel.   To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice.   A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.   Tactical errors are generally not deemed reversible.   Counsel's decisionmaking is evaluated in the context of the available facts.   To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation.   Prejudice must be affirmatively proved.   The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  (People v. Maury (2003) 30 Cal.4th 342, 389.)   Attorneys are not expected to engage in tactics or to file motions which are futile.  (Id., at p. 390;  also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)

THE COURT * FN*.  Before Wiseman, Acting P.J., Levy, J., and Franson, J.