Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.Nos. RIF131917 & RIF132149, Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant guilty of two counts of domestic violence (Pen. Code, § 273.5, subd. (a)) (counts 1 and 8); two counts of false imprisonment (§ 236) (counts 2 and 5); one count of making criminal threats (§ 422) (count 3); one count of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 4); one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 6); and one count of deterring or resisting an executive officer (§ 69) (count 7). As to the two counts of domestic violence (§ 273.5, subd. (a)) and the one count of assault with a deadly weapon (§ 245, subd. (a)(1)), the jury found true the allegations that defendant inflicted great bodily injury (§ 12022.7, subds. (a) & (e)) and that the offenses constituted serious felonies (§ 1192.7, subd. (c)(8)). Defendant admitted suffering one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)); one prior serious felony conviction (§ 667, subd. (a)); and five prior convictions that resulted in prison terms (§ 667.5, subd. (b)). The court sentenced defendant to state prison for a term of 25 years.
All further references to code sections are to the Penal Code unless otherwise indicated.
The trial court twice pronounced defendant’s total term of imprisonment as 24 years eight months. This calculation is incorrect. Defendant’s total sentence adds up to 25 years. The court sentenced defendant to six years for the substantive offense in count 1. The court sentenced defendant to a consecutive term of four years for the great bodily injury enhancement in count 1, for a total term of 10 years. The court sentenced defendant to a consecutive five-year term for his prior serious felony conviction, for a total term of 15 years. The court sentenced defendant to a consecutive term of one year eight months for the conviction in count 2, for a total term of 16 years eight months. Defendant was sentenced to a consecutive term of one year four months for count 3, for a total term of 18 years. The court sentenced defendant to a consecutive term of two years for the substantive offense in count 4 and a consecutive term of one year for the enhancement of inflicting great bodily injury, for a total term of 21 years. With regard to count 5, the court sentenced defendant to a consecutive term of one year four months, for a total term of 22 years four months. As to count 6, the court sentenced defendant to a consecutive term of one year four months, for a total term of 23 years eight months. The court sentenced defendant to a consecutive term of one year four months for his conviction in count 7, for a total term of 25 years. As to count 8, the court sentenced defendant to a concurrent term of three years for the substantive offense, and a concurrent term of two years for the bodily injury enhancement. As to the five prior convictions that resulted in prison terms (§ 667.5, subd. (b)), the court imposed and struck a one-year term for each prior conviction.
Defendant makes three contentions. First, defendant contends the evidence that he resisted an executive officer (§ 69) does not meet the substantial evidence standard. Second, defendant argues that the trial court erred by not instructing the jury on the offense of resisting or obstructing a peace officer (§ 148, subd. (a)(1)), because it is a lesser included offense of resisting an executive officer (§ 69). Third, defendant contends his trial counsel was ineffective, because he failed to object to the admission of hearsay statements. We affirm the judgment.
FACTS
Defendant’s case involves two separate incidents. The two incidents were charged separately, but consolidated before the jury delivered its verdict.
1.
FIRST INCIDENT
Defendant was Rosa’s boyfriend for approximately two years. Defendant and Rosa lived with defendant’s sister, Darcie, and Darcie’s children, in a house in Moreno Valley. Riverside County Sheriff’s Deputy Reese, who was assigned to the Moreno Valley Police Department, testified that on July 1, 2006, he was dispatched to investigate an attempted suicide at the house where defendant and Rosa lived. When Deputy Reese arrived at the house, he found Rosa “bleeding profusely from her face.” Rosa’s eye was swollen shut, her nose was swollen, and her lip was cut. Deputy Reese opined that Rosa’s injuries were recent and caused by multiple strikes to her face.
Deputy Reese spoke to Darcie, who had called 911, but Darcie would not identify Rosa’s attacker, because she feared retaliation. Deputy Reese spoke to Rosa at the hospital. Rosa identified her attacker as her boyfriend, but would not provide the attacker’s name, because she feared he would harm her family. Rosa told the deputy that she asked her boyfriend to come to bed three times that night, which caused him to become upset. Rosa told the deputy that her boyfriend grabbed her, pulled her from the bedroom to the bathroom, and hit her face two times.
At trial, Rosa testified that she was injured on July 1, 2006, as a result of being drunk, falling, and hitting a toilet seat. Rosa did not recall speaking to Deputy Reese.
2.
SECOND INCIDENT
On August 15, 2006, Rosa, defendant, Darcie, and Darcie’s children were staying at the Motel 7, in Moreno Valley. At approximately 3:30 a.m., on August 15, 2006, Riverside County Sheriff’s Deputy Koehler, who was assigned to the Moreno Valley Police Department, was dispatched to investigate a battery at the Motel 7. When the deputy arrived at the motel, Darcie was in the parking lot. Darcie told the deputy that she had been attacked by an unidentified person who was in an upstairs motel room “where the middle number on the door was broken.” Deputy Koehler knocked on the door identified by Darcie, and defendant answered. Rosa was also in the motel room.
Deputy Koehler, who was joined by Corporal Wills, commanded defendant to step outside the room and fall to his knees. Defendant did not comply with the deputy’s orders, and said he had done nothing wrong. Defendant began walking towards Deputy Koehler. Deputy Koehler felt threatened and held defendant at gunpoint. Corporal Wills fired darts from a taser towards defendant’s chest, but they appeared to have no effect. Corporal Wills again fired darts from a taser, which struck defendant’s chest. Defendant doubled over and screamed, but then pulled the darts from his chest and ran from the room.
Defendant ran approximately 500 yards, through the motel parking lot, over a fence, and into a field. Defendant eventually stopped. Deputy Koehler commanded defendant to lie down and keep his hands visible. When defendant lay down, he tucked his hands underneath his midsection. Several deputies attempted to handcuff defendant. Defendant refused to relax his arms, which prevented the deputies from pulling them out from underneath his body. Deputy Wolfe hit defendant’s back with a baton. Eventually, after the deputies handcuffed defendant, defendant refused to stand. Once defendant stood, he resisted Deputy Koehler walking him towards the patrol car by “violently” moving from side to side and forcing his arms up. Photographs of defendant showed blood and abrasions on defendant’s forehead, hands, and wrists, which Deputy Koehler thought likely resulted from defendant’s struggle with the deputies. Defendant also suffered a fractured hand.
After defendant was secured, Deputy Koehler spoke to a motel employee and found that the motel room Darcie identified was registered to defendant. A revolver was discovered in defendant’s motel room. Rosa informed the deputy that defendant was keeping the firearm for a friend who was in jail. It was later discovered that the gun was registered to a sergeant with the Riverside County Sheriff’s Department. Glass pipes for smoking methamphetamine or cocaine were also found in the motel room.
Both Rosa and Darcie were taken to the hospital. Rosa’s jaw was fractured in two places, she was missing several teeth, she had distinct bite marks on her thighs, her lip was cut, she had an abrasion on her forehead, and bruising on her face, neck, and legs. Rosa told Deputy Koehler that defendant caused her injuries. Rosa stated that the bite marks occurred during a violent attack by defendant on a different day. Rosa informed the deputy that the rest of her injuries resulted from an hour-long beating, where defendant would alternate between smoking rock cocaine, hitting Rosa, and hitting Darcie. Rosa attempted to leave the motel room during the attack, but defendant told her “that he would kill her before he let her get out the door.” Defendant also blocked the paths of both Darcie and Rosa. Rosa told the deputy that defendant’s nephew, Kenny, who was in his 20’s, was also in the room during the hour-long attack. Rosa stated that Kenny stood and watched while she and Darcie were beaten. Rosa stated that Darcie was finally able to leave the room when defendant turned his attention towards Rosa.
When speaking to Deputy Koehler at the hospital, Rosa also accused defendant of causing her injuries during the first incident, on July 1, 2006.
Both Rosa and Darcie denied using drugs the night of August 14, 2006; however, both and been drinking alcohol throughout the day. Darcie passed out due to the alcohol she ingested. At the hospital, Darcie was unable to recall being physically attacked. Darcie stated that she could only remember waking up on the floor with blood around her, and defendant standing over her telling her, “Shut up and don’t move.” Darcie suffered a concussion and extensive swelling on her face.
Dr. Hu, an attending physician in the emergency department of the Riverside Medical Center, testified that on Rosa’s hospital consultation form it is indicated that Rosa stated that she had been “assaulted with [a] fist by [her] boyfriend.”
At trial, Rosa testified that she remembered being hospitalized on August 15, 2006, for a broken jaw. Rosa testified that she was arguing with Darcie that evening, and Darcie grabbed her, and defendant’s nephews hit her. Rosa testified that defendant did not injure her, and that he tried to protect her from his nephews. Rosa stated that the bite marks on her legs were “passion” bites. Rosa testified that the gun in the motel room may have belonged to defendant’s nephews. Rosa did not recall making statements to Deputy Koehler accusing defendant of harming her.
DISCUSSION
1.
SUBSTANTIAL EVIDENCE
Defendant contends the evidence that he deterred or resisted an executive officer (§ 69) does not meet the substantial evidence standard. Defendant concedes that he passively resisted being taken into custody, but he argues that he did not use force or violence, and therefore substantial evidence does not support his conviction. We disagree.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We review the entire record in the light most favorable to the judgment to determine whether it contains “‘“substantial evidence—that is, evidence which is reasonable, credible, and of solid value—”’” from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume “in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (Ibid.)
Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable” by a fine, imprisonment, or both.
We note that the term “‘“executive officer” has long been held to include police officers.’” (People v. Williams (1999) 72 Cal.App.4th 1460, 1463, fn. 5.)
“The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.” (In re Manuel G. (1997) 16 Cal.4th 805, 814.)
In the instant case, defendant was charged with both deterring and resisting Deputy Koehler; however, the prosecutor’s argument focused only on the second portion of section 69—that defendant used force when resisting the deputy. Consequently, the jury was instructed with CALCRIM No. 2652, which sets forth the elements for the second type of crime in section 69, i.e., resisting an executive officer by force or violence. Accordingly, we will not discuss whether substantial evidence supports a finding that defendant deterred an executive officer.
We note that throughout the trial, the charge of deterring or resisting an executive officer was treated as though there were no named victim in the charging document. First, when the court read the charges to the jury, it named Deputy Koehler and Deputy Wolfe as alleged victims of defendant’s alleged act of resistance. Second, the prosecutor argued that force or violence was used against Deputy Koehler and Deputy Wolfe. Third, the verdict form did not name a victim. Nevertheless, we focus our discussion of the evidence on Deputy Koehler, because he was the named victim in the amended information. After the close of evidence, defendant was arraigned on the amended information. The original information and the amended information name only Deputy Koehler as the alleged victim of defendant’s alleged act of resistance.
The definition of “force or violence,” in the context of this statute is unclear. (§ 69.) We have not found, and the People and defendant have not offered, any case or legislative history defining what conduct constitutes “force or violence” within the meaning of section 69. The People assert that we should use the definitions of force and violence given in the jury instruction for battery (CALJIC No. 16.141); defendant does not offer alternate definitions, but argues the evidence is insufficient to prove defendant acted with force or violence as defined for the crime of battery. While the People present an interesting argument, we leave the resolution of this issue for another day. As we will explain, the force and violence applied by defendant in resisting Deputy Koehler was considerable and exceeded the “slightest unlawful touching” definition of force and violence employed by the People and defendant. In sum, we need not define the phrase “force or violence” due to the facts of the case.
The definitions of force and violence cited by the People are taken from CALJIC No. 16.141, which provides: “[T]he words ‘force’ and ‘violence’ are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient. [¶] It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable. [¶] The touching essential to a battery may be a touching of the person, of the person’s clothing, or of something attached to or closely connected with the person.”
When Deputy Koehler first came into contact with defendant at the motel, defendant refused to follow the deputy’s commands to fall to his knees. Defendant walked towards Deputy Koehler, which caused the deputy to feel threatened. After being tased, defendant ran into a field. Deputy Koehler chased defendant.
Once in the field, defendant stopped running. Deputy Koehler and Deputy Wolfe instructed defendant to lie flat on the ground and keep his hands visible. Defendant lay on the ground, but tucked his hands under his body as though reaching for his waistband. Defendant refused to relax his arms, so that Deputy Koehler and the other deputies could place him in handcuffs. Deputy Koehler and the other deputies were able to handcuff defendant only after striking defendant with a baton. Defendant struggled in the handcuffs. While walking to the police car, with Deputy Koehler, defendant threw himself from side to side, forcing his arms up.
A photograph of defendant from August 15, 2006, showed Defendant’s head, face, and shirt were covered in dirt from the field. Another photograph of defendant reflected blood on his forehead. Deputy Koehler opined that the injury was sustained during defendant’s struggle with Deputy Koehler, because defendant did not have blood on his forehead while in the motel room. A photograph of defendant’s hands reflected blood and abrasions on defendant’s wrists, and a small injury on the back of defendant’s right hand.
The jury could reasonably conclude from the foregoing evidence that defendant sustained his injuries due to forcibly resisting Deputy Koehler’s attempts to place him in handcuffs and walk him to the police car. Accordingly, defendant’s actions were not passive; rather defendant struggled with the deputies, including Deputy Koehler, in the field and then violently tossed himself from side to side when walking towards the police car. Deputy Koehler testified that he felt threatened by defendant’s actions.
We conclude the foregoing evidence of defendant struggling with Deputy Koehler, thrashing about, and causing Deputy Koehler to feel threatened, provides substantial evidence that defendant resisted Deputy Koehler by force or violence.
2.
JURY INSTRUCTION
A. Facts
When discussing jury instructions, the following exchange took place:
“[The Court]: Now, I believe for the record, [defense counsel], that you wish to ask for a lesser-included offense under 2652 of Penal Code Section 148(a).
“[Defense counsel]: Correct.
“The Court: And did you so move?
“[Defense counsel]: So moved.
“The Court: Okay. And in the lesser-included offenses listed under [CALCRIM No.] 2652, I am looking at my CALCRIM Judicial Council of California Criminal Jury Instructions, 2006, it indicates at page 468, Penal Code Section 148 may be a lesser-included offense. [¶] Do you have any authority, in particular, any case authority, [defense counsel], that you wish to present to me that would support your contention that Penal Code Section 148(a) is a lesser-included offense to a Penal Code Section 69?
“[Defense counsel]: No.
“The Court: Okay. I have reviewed the case of People v. Belmares . . . which . . . concluded that a Penal Code Section 148(a) is not a lesser-included offense of attempting to deter an officer, so therefore your request is hereby denied.”
B. Analysis
Defendant contends that his conviction for resisting an executive officer (§ 69) should be reversed because the trial court erred by denying defendant’s request to instruct the jury on the lesser included offense of resisting a peace officer (§ 148, subd. (a)(1)). We disagree.
(i) Lesser Included Offense
We begin by addressing the People’s contention that section 148, subdivision (a)(1), resisting a peace officer, is not a lesser included offense of section 69, resisting an executive officer, and therefore the trial court did not err by not instructing the jury on the crime of resisting a peace officer (§ 148, subd. (a)(1)). We disagree with the People’s argument that resisting a peace officer (§ 148, subd. (a)(1)) is not a lesser included offense of resisting an executive officer (§ 69).
“The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.)
For reference we provide the language of the two statutes.
Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable” by a fine, imprisonment, or both.
Section 148, subdivision (a)(1), provides: “Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine,” imprisonment, or both.
As noted by defendant and the People, there is a split of authority in the Courts of Appeal as to whether resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive officer (§ 69). (People v. Lacefield (2007) 157 Cal.App.4th 249, 257 (Lacefield); People v. Belmares (2003) 106 Cal.App.4th 19, 24 (Belmares), disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228.) We conclude that we are able to reconcile the reasoning of the two seemingly opposing cases, because the alleged split appears to have occurred due to the two different offenses included in section 69. (See In re Manuel G., supra, 16 Cal.4th at p. 814 [discussing the two different offenses].)
In Lacefield, the Second District, Division Eight, focused on the second offense in section 69—resisting an executive officer—and concluded that resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive officer (§ 69). (Lacefield, supra, 157 Cal.App.4th at pp. 255-257.) The court applied the statutory elements test—comparing the elements of section 148, subdivision (a)(1), with the elements in the second half of section 69—and determined that “it appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1), which means that section 148(a)(1) is a lesser included offense of the second type of offense in section 69.” (Lacefield, at p. 257.) The court explained that both statutes included the same temporal element, because the officer had to be performing an official duty when the crime occurred. (Ibid.) Additionally, both statutes “require resistance, although section 148(a)(1) also refers to delay or obstruction.” (Ibid.)
In Belmares, District Five focused on the first portion of section 69—deterring or preventing an executive officer from performing an official duty—and concluded that resisting a peace officer (§ 148, subd. (a)(1)) is not a lesser included offense of deterring an executive officer. (Belmares, supra, 106 Cal.App.4th at p. 24.) When court applied the statutory elements test, it concluded that the temporal elements of sections 69 and 148 are different. (Belmares, at p. 24.) The court explained that “one can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge or attempted discharge of a duty at that time.” (Ibid.)
We conclude that reasoning of both Lacefield and Belmares is correct, i.e., that resisting a peace officer (§ 148, subd. (a)(1)) is not a lesser included offense of the first crime defined in section 69—deterring an executive officer (Belmares); however, resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included offense of the second crime defined in section 69—resisting an executive officer (Lacefield).
In the instant case, defendant was charged with both deterring and resisting Deputy Koehler; however, as noted ante,the prosecutor’s argument focused only on the second portion of section 69—that defendant used force when resisting the deputy. Consequently, the jury was instructed with CALCRIM No. 2652, which sets forth the elements for the second type of crime in section 69, i.e., resisting an executive officer by force or violence. Accordingly, we conclude that defendant was found guilty of the second type of offense in section 69. Therefore, we follow the reasoning of Lacefield and conclude that section 148, subdivision (a)(1), is a lesser included offense of the crime for which defendant was convicted (§ 69).
(ii) Defendant’s Contention
We independently review a trial court’s decision not to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) “The court must, on its own initiative, instruct the jury on lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present [citations], and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 596.)
Deputy Koehler and Deputy Wolfe testified that defendant struggled with the deputies while on the ground by not allowing the deputies to place him in handcuffs. Photographs of defendant reflected blood and abrasions on his forehead, hands, and wrists. Deputy Koehler testified that defendant violently moved from side to side when walking towards the patrol car with Deputy Koehler; however, Deputy Wolfe testified that defendant was compliant on the walk to the patrol car.
Based upon the foregoing evidence, there is no middle ground where defendant’s actions could be deemed as merely resistance, as set forth for the crime of resisting a peace officer. (§ 148, subd. (a)(1).) The evidence suggests that defendant was either (1) forcibly and violently resisting the deputies; or (2) he was compliant. Nothing in the record suggests that defendant passively resisted the deputies.
As discussed ante, there is substantial evidence that defendant used force or violence when resisting Deputy Koehler. Accordingly, there is no question as to whether all the elements of the charged offense were present. Consequently, we find no error in the trial court’s denial of defendant’s request to instruct the jury on the crime of resisting a peace officer (§ 148, subd. (a)(1)), because there was not substantial evidence that defendant committed the lesser included offense, which if accepted by the trier of fact would exculpate the defendant from guilt of the greater offense.
3.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Facts
Defendant contends his attorney was ineffective, in regard to count 4, because he failed to object to hearsay testimony. In this section, we present the facts pertinent to our analysis of this issue.
Defendant was convicted, in count 4, of assaulting Darcie with a deadly weapon. (§ 245, subd. (a)(1).) The jury also found true the allegation that defendant inflicted great bodily injury on Darcie. (§ 12022.7, subd. (a).) Darcie did not testify at trial.
(i) Deputy Koehler’s Testimony
Deputy Koehler testified that a 911 call concerning the second incident of domestic violence was received at 3:30 a.m., and that he arrived at the Motel 7 at 3:34 a.m. The deputy testified that when he arrived at the motel, Darcie was in the parking lot. The deputy described Darcie as suffering from a swollen face, small lacerations, and an eye that was swollen shut.
On direct examination, Deputy Koehler testified that Darcie told him “someone had attacked her, but she wasn’t sure who.” The deputy asked Darcie where the attack occurred, and she pointed in the direction of the hotel room and “indicated . . . that her attacker was inside a room where the middle number on the door was broken.”
On direct examination, Deputy Koehler went on to testify that he also spoke to Darcie at the hospital. The deputy testified that Darcie told him that she could not recall how she sustained her injuries and that “the last thing that she remembered was waking up on the floor with the defendant standing over her . . . she recalled that she was bleeding significantly and that there was blood around her as well.” Darcie also told the deputy that while defendant stood over her, he said, “Shut up and don’t move.”
Additionally, on direct examination of Deputy Koehler, the prosecutor introduced four photographs of Darcie’s injuries.
We note that five photographs of Darcie were admitted into evidence, but only four were identified during Deputy Koehler’s testimony; we are unable to locate in the record a witness who authenticated the fifth photograph.
Defendant’s trial counsel did not object to the foregoing evidence.
On cross-examination, defense counsel questioned Deputy Koehler about his interview with Darcie. Defense counsel asked whether Darcie was able to recall her birthday, and the deputy testified that Darcie could not remember her birthday or where she lived. Defense counsel asked whether Deputy Koehler found Darcie’s story to contain inconsistencies, and the deputy responded that initially he did find inconsistencies. Defense counsel then asked the deputy whether Darcie told him that she used cocaine in the days prior to the incident, which the deputy said Darcie admitted. Defense counsel also asked the deputy whether Darcie stated that “[s]he drinks a lot of alcohol.” The deputy testified that Darcie stated “she likes to drink.”
(ii) Dr. Hu’s Testimony
Dr. Hu testified that he treated Darcie at the hospital. During Dr. Hu’s testimony, the prosecutor introduced a medical form. Dr. Hu testified that he entered the information on the “top portion” of the form, but the “bulk of the form is filled out by the consulting physician with regards to their interview of the patient, their examination of the patient, and their examination of any imaging that may have to be performed in the laboratory.” Dr. Hu testified that the bottom of the form indicated the date of treatment was August 15, 2006, and that the patient was Darcie Washington. Dr. Hu stated that the “history” section of the form, which “was written by the neurosurgery resident . . . states that the patient was assaulted by her brother.” Dr. Hu testified that he recalled Darcie suffering “a bruise on the brain and extensive swelling to the facial areas.” Defense counsel did not object to the foregoing evidence.
On cross-examination, defense counsel asked Dr. Hu about the form. Defense counsel asked what Darcie’s final diagnosis was, as indicated on the form. Dr. Hu stated the final diagnosis was a concussion, which was made by the neurosurgery resident. Defense counsel asked if Dr. Hu was trying to make Darcie’s injuries sound more severe by testifying that she suffered a brain injury rather than a concussion, as indicated on the form. Dr. Hu explained that it was a cerebral contusion. Defense counsel then asked if the form indicated that Darcie could be treated on an outpatient basis and that she did not need any immediate treatment. Dr. Hu testified that the form reflected that Darcie was released that morning and did not need immediate treatment.
(iii) Closing Argument
During closing arguments, defense counsel argued that the deputies were biased because defendant has a pending civil suit for excessive brutality against the deputies. Defense counsel contended that the deputies’ testimony was not trustworthy because they had an interest in the outcome of the case. Defense counsel argued that Dr. Hu may have lied in order “to corroborate the prosecution’s case.” Defense counsel also argued that the deputies were racially biased. Defense counsel argued: “I think there is an element of race involved here. [¶] The police officers arrived at that scene, saw Darcie in the parking lot. She pointed to the room. She doesn’t say anything about who did what to her. She simply points to the room. They in their minds were already convinced that whoever is in that room did what happened to Darcie without her telling them that.”
Later, defense counsel argued that Darcie’s out-of-court statements were unreliable because Rosa “testified that she and Darcie drank all day. The room was strewn with bottles. They [were] in a drunken and [sic] stupor. If you look at the medical records, you will see the August 15th entry indicates that Darcie smelled of alcohol and appeared to be under the influence when she was brought to the hospital. [¶] So one of the elements of whether you should believe a witness or not is the ability of a witness to perceive, recall, recollect. If these people are completely drunk and on drugs, how well can they recollect what happened that night?”
Defense counsel went on to argue that Rosa’s and Darcie’s statements were simply a distraction provided by the prosecution to detract from the deputies’ use of excessive force. Defense counsel argued, “And the easy way to piece together the thread of the case so [the prosecution] can point the finger at [defendant] and convict [defendant] is to have statements in there about who did that to [Rosa and Darcie], who did these acts to them. [¶] It focuses the inquiry away from the officers for excessive force. It puts a neat little package together so they can get their conviction.”
B. Analysis
Defendant contends his conviction for assaulting Darcie (§ 245, subd. (a)(1)) and the associated enhancements for that conviction should be reversed, because his trial counsel was ineffective. Specifically, defendant contends that his trial counsel should have objected on three points. First, defendant argues that his trial counsel should have objected to Deputy Koehler’s testimony about Darcie’s out-of-court statements on confrontation clause grounds because Darcie’s statements were testimonial. Second, defendant asserts that his trial counsel should have objected to Deputy Koehler’s testimony about Darcie’s out-of-court statements on hearsay grounds, because the statements did not fall within an exception to the hearsay rule. Third, defendant argues that his trial counsel should have objected to Dr. Hu’s testimony about Darcie’s out-of-court statements on hearsay grounds, because the statements did not fall within an exception to the hearsay rule. Defendant contends that Deputy Koehler’s and Dr. Hu’s testimony about Darcie’s out-of-court statements constituted the only evidence supporting his conviction for assaulting Darcie. Consequently, defendant argues that his attorney’s failure to raise these objections was prejudicial, because if his attorney objected, the evidence would have been excluded, and he would not have been found guilty of assaulting Darcie. We disagree.
“‘To establish entitlement to relief for ineffectiveness of counsel defendant must show (1) trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.’ [Citations.]” (People v. Wrest (1992) 3 Cal.4th 1088, 1114.)
“Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: ‘“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of professional assistance.”’ [Citation.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.]”’ (People v. Stanley (2006) 39 Cal.4th 913, 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926.)” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
We note that “[d]efendant’s burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel’s act or omission. [Citations.]” (People v. Montoya, supra, 149 Cal.App.4th at p. 1148.)
Our review of the record reveals that defendant’s trial counsel had tactical reasons for not objecting to the admission of Darcie’s out-of-court statements. Defense counsel argued the theory that the prosecution’s charges of domestic violence were merely a smokescreen intended to detract attention from the deputies’ use of excessive force. Defense counsel used Darcie’s out-of-court statements to defendant’s advantage in support of this argument by attempting to show that the alleged acts of domestic violence were not believable. Defense counsel strategically questioned Deputy Koehler about Darcie’s level of intoxication. Defense counsel then argued that Darcie’s statements to the deputies and hospital personnel were not credible because she was too intoxicated, and therefore defendant could not be found guilty of assault.
Defense counsel’s strategy was sound, because the argument accounted for why defendant was not guilty of all the charges—it explained why defendant used force against the officers, i.e., the officers were using excessive force against defendant, and it explained why defendant was not guilty of the domestic violence and assault charges, i.e., that the domestic violence and assault allegations were essentially fabricated as a means of detracting from the deputies’ use of excessive force. If trial counsel had moved to exclude Darcie’s statements and simply tried to acquit defendant of the domestic violence and assault charges, then defendant could have still been found guilty of resisting an executive officer (§ 69). Defense counsel’s strategy was impressive, because it provided an innocent explanation for all the charges against defendant.
Of course, in hindsight, it is easy to argue that defendant’s trial counsel may have been more successful if he had moved to exclude Darcie’s out-of-court statements rather than use the statements to his advantage, but this does not render defense counsel’s assistance ineffective. We conclude that defense counsel made a reasonable tactical decision in choosing not to object to the admission of Darcie’s out-of-court statements. Accordingly, we find counsel rendered competent assistance to defendant.
DISPOSITION
The judgment is affirmed.
We concur:King J., Miller J.