People v. Haskin CA2/8 ( 2016 )

Filed 4/21/16 P. v. Haskin CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B264690
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391618)
v.
EDDIE EARL HASKIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Douglas
Sortino, Judge. Affirmed.
D. Inder Comar, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
**********
Defendant and appellant Eddie Earl Haskin appeals from his conviction by jury of
one count of corporal injury to a spouse, one count of disobeying a domestic violence
protective order, one count of making a criminal threat, and one count of stalking. The
charges arose from incidents that took place on August 22 and November 21, 2011
between defendant and his wife, Felecia Balam, from whom he was separated.
On August 22, 2011, Ms. Balam made numerous calls to 911 reporting that
defendant was harassing her outside of a liquor store (as well as later that same day at her
mother’s home), he was making threats, and he was violating a restraining order by
coming near her. Ms. Balam and defendant were married in 2008, but in August 2011,
Ms. Balam was separated from defendant and no longer living with him. When he first
approached her that day, he shook his fist at her and told her he “should f--- [her] up.”
He then walked away. Defendant then approached her again, still angry, grabbed her
hard by both arms and yanked her hair. Defendant struck her on the left side of her head,
and then ran off again, laughing. Ms. Balam returned to her mother’s home nearby. The
police eventually arrived, took a report from Ms. Balam and took photographs of an
injury to her arm.
On November 21, 2011, one of the police officers investigating the August 22
incident was speaking with Ms. Balam at her mother’s home. She told the officer that
defendant had been served again, by her father, with a copy of a restraining order, and
defendant had crumpled it up and thrown it on the ground. Defendant had also come
over to the house earlier that day, uninvited. While the officer was speaking with
Ms. Balam, she received a phone call from defendant. Defendant was speaking loud
enough that the officer could hear what defendant was saying over the phone. Defendant
said he did not care about any restraining orders and that he was going to come over to
the house and “f--- [her] up.”
Defendant was charged by information with four counts: corporal injury to a
spouse (Pen. Code, § 273.5, subd. (a)); disobedience of a domestic violence protective
order (§ 273.6, subd. (a)), making a criminal threat (§ 422, subd. (a)), and stalking
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(§ 646.9, subd. (b)). It was also alleged defendant had a prior qualifying strike (1991
robbery) within the meaning of the Three Strikes law (§ 1170.12, subds. (a)-(d), § 667,
subds. (a)(1) & (b)-(i)), as well as a prior misdemeanor conviction for corporal injury to a
spouse/cohabitant from 2011 within the meaning of section 273.5, subdivision (f).
Defendant pled not guilty and denied the special allegations.
The case proceeded to trial by jury in March 2015. Ms. Balam testified to the
above incidents and a recording of her 911 calls was played for the jury. The jury was
also shown photographs, including one of an abrasion on Ms. Balam’s arm which she
identified as an injury she received during the altercation with defendant on August 22,
2011. Officer Michael Zorkin of the Los Angeles Police Department testified to his
investigation of the August 22, 2011 incident. Officer Steven Franssen, who overheard
the telephone conversation between defendant and Ms. Balam on November 21, also
testified.
The jury was advised that defendant pled no contest in February 2011 to a
misdemeanor violation of Penal Code section 273.5 involving Ms. Balam, that he was
placed on three years formal probation, and was served with a protective order ordering
him to not harass or annoy Ms. Balam, or come within 100 yards of her or her home.
The jury found defendant guilty as charged. In a bifurcated proceeding, the court
found the prior allegations true.
At the sentencing hearing, the court heard lengthy argument on defendant’s
motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The court denied the motion, reasoning that while defendant’s prior strike for robbery
from 1991 was old, defendant had a “consistent and constant record of criminal
convictions both felony and misdemeanor from 1990 through 2010” (including
knowingly violating a domestic violence protective order), and therefore could not be
characterized as someone with a background, record and character outside the spirit of
the “Three Strikes” law.
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The court sentenced defendant to a state prison term of 14 years 4 months,
calculated as follows: the court selected count 1 (violation of Pen. Code, § 273.5, subd.
(a) on Aug. 22, 2011) as the base term and imposed a midterm of four years, doubled due
to the prior strike; a consecutive term on count 3 (criminal threat of Nov. 21, 2011) of
eight months (one-third the midterm) doubled due to the prior strike; a concurrent term of
365 days on count 2 (violation of protective order); and, a five-year enhancement for the
prior strike pursuant to section 667, subdivision (a)(1). On count 4, the court imposed
and stayed, pursuant to section 654, a four-year midterm. The court imposed various
fines and fees, and awarded defendant total custody credits of 317 days.
Defendant filed a timely notice of appeal. We appointed appellate counsel to
represent defendant. Appellate counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration
from counsel that he reviewed the record and sent a letter to defendant explaining his
evaluation of the record. Counsel further declared he advised defendant of his right,
under Wende, to submit a supplemental brief within 30 days, and forwarded copies of the
record to defendant.
On February 19, 2016, defendant filed a handwritten letter brief enumerating
16 contentions as follows: “1. My attorney didn’t rep[re]sent me correctly because she
didn’t ask the right question [during] examination. [¶] 2. The main witness at [trial] is a
heavy alcoholic and she has lie[d] under oath in the pas[t]. [¶] 3. The court should not
have granted the main witness immunity. [¶] 4. The court should not have played the
old 911 tape to the jury. My attorney at trial wasn’t prepare[d] for the 911 tape. [¶]
5. The main witness change[d] her testimony at trial from her previous testimony. [¶]
6. The district attorney threaten[ed] the main witness. [¶] 7. Police never stated he
heard defend[a]nt threaten main witness. [¶] 8. Why wasn’t cell phone records
subpoena[ed?] [¶] 9. Why wasn’t main witness[’s] father subpoena[ed] to court if father
gave defend[a]nt restraining order[?] [¶] 10. The main witness[’s] picture was without
braids. [¶] 11. Why w[ere]n’t store clerk subpoena[ed] to court[?] [¶] 12. Why wasn’t
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my Ramro Act [sic] granted and strike is 25 year[s] old and rec[ei]ve[d] a 5 year
enhancement[?] [¶] 13. Main witness has a criminal history and has been to prison [for]
being violent. [¶] 14. Main witness has lock[ed] up many men on domestic violence
issue being under the influence of alcohol. [¶] 15. Main witness being under influence
of alcohol has call[ed] police on father. [¶] 16. Main witness was disappointed [during]
our sep[a]ration.” No further explication is provided in the letter as to the bases for
defendant’s claims of error.
Several of defendant’s enumerated contentions are incomprehensibly vague and
do not merit discussion (e.g., contention Nos. 1 & 10). However, the great bulk of
defendant’s contentions vaguely suggest that defense counsel failed to provide effective
assistance at trial. Establishing ineffective assistance of counsel on direct appeal is a
difficult burden. If “ ‘ “the record on appeal 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,”
the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266.)
Further, a number of the contentions regarding counsel’s performance pertain to
the presentation of witnesses and evidence. Failure to present specific evidence or
witnesses, ask certain questions in direct or cross-examination, or make certain objections
to evidence are traditionally deemed to fall within the realm of trial tactics over which the
court will not engage in “judicial hindsight.” (People v. Beagle (1972) 6 Cal.3d 441, 458,
superseded by statute on other grounds as stated in People v. Rogers (1985) 173
Cal.App.3d 205, 208-209; see also People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
The record here does not disclose any reason why defense counsel did not, for instance,
call the liquor store clerk or the victim’s father to testify, and we therefore cannot resolve
those questions on this record.
As for the balance of the alleged deficiencies in defense counsel’s performance,
they are best described as counsel’s alleged failure to impeach the credibility of the
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victim, Ms. Balam. However, the record demonstrates that defense counsel cross-
examined Ms. Balam quite extensively, asking questions about her regular alcohol
consumption, inconsistencies in her prior testimony, and her admission that she
previously lied in a written declaration submitted to the court. The record on appeal does
not support a finding of ineffective assistance of counsel.
As for the grant of use immunity to Ms. Balam under Penal Code section 1324
relating to her preliminary hearing testimony, the record does not disclose any error by
the court in granting the prosecution’s request. Nor does the record establish any threat
made to Ms. Balam by the prosecution.
Finally, defendant contests the denial of his “Ramro Act” motion. Because
counsel also makes reference to his prior strike in connection with this contention, we
assume defendant meant to raise the propriety of the denial of his Romero motion. A trial
court’s ruling denying a Romero motion is reviewed under the deferential abuse of
discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375-376.) Defendant
has not affirmatively shown that the trial court’s sentencing choices were irrational or
arbitrary. Indeed, the record demonstrates the court allowed extensive argument on
defendant’s motion and carefully considered the issues, setting forth with relative detail
his reasons for denying the motion. The record does not reveal any abuse of discretion
by the trial court.
As for any other potential appellate issues, we have examined the entire record of
proceedings submitted to this court, and are satisfied that appointed counsel fully
complied with his responsibilities in assessing whether or not any colorable appellate
issues exist. We conclude there are no arguable appellate issues. (People v. Kelly (2006)
40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J. FLIER, J.
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