People v. Moppins CA3 ( 2022 )

Filed 6/23/22 P. v. Moppins CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent, C092099
v. (Super. Ct. No.
STKCRFE20191765)
NICHOLAS DEAN MOPPINS,
Defendant and Appellant.
A jury convicted defendant Nicholas Dean Moppins of second degree robbery,
assault with a deadly weapon, and a criminal threat in connection with his taking several
pairs of shoes from a Macy’s department store after waving a metal bar and threatening
to bust things and a person’s head. Defendant admitted a prior strike conviction and the
trial court sentenced him to an aggregate prison sentence of three years eight months.
Defendant now contends (1) insufficient evidence supports his convictions, (2) the
trial court erred in instructing the jury with an incorrect written CALCRIM No. 875
instruction on assault with a deadly weapon, (3) the trial court should have sua sponte
reopened closing argument after giving a modified jury instruction, (4) the trial court
1
should have sua sponte instructed on the lesser-included offense of attempted robbery,
(5) the trial court erred in denying his request to instruct on attempted criminal threat,
(6) his trial counsel rendered ineffective assistance, and (7) cumulative error requires
reversal of his conviction for assault with a deadly weapon.
We conclude substantial evidence supports the convictions, defendant has not
established prejudicial instructional error or ineffective assistance of counsel, and there is
no cumulative error requiring reversal. We will affirm the judgment.
BACKGROUND
U.R. was working at Macy’s women’s shoe department when she observed
defendant collecting red shoes and waving them in front of a mirror. Defendant
continued picking up red shoes and moved toward the doors leading to the parking lot
when U.R. offered her assistance. U.R. said defendant could not take the shoes.
Defendant pulled out a jack handle1 and walked backward toward the exit doors. He
said, “I’ll bust y’all shit.” He held several pairs of shoes in one hand and the jack handle
in his other hand. U.R. was concerned for her safety.
Officer Victor Arreola, a federal law enforcement officer, was at Macy’s with his
children when he noticed defendant. Officer Arreola saw U.R. approach defendant and
heard defendant yelling. Officer Arreola was concerned that defendant would strike U.R.
with the jack handle. Officer Arreola told U.R. to stay back.
Defendant pointed and waved the jack handle at Officer Arreola and said, “if
you’re a cop, I’m going to bust yo head open. You a cop. You a cop.” Defendant waved
the jack handle as if he was going to strike Officer Arreola with it. Officer Arreola told
defendant to just leave the store. Defendant kept yelling that Officer Arreola was a “cop”
1 U.R. thought the object was a crowbar. She described it as a 12- to 14-inch piece of
metal. Police later recovered a Ford-brand jack handle. On appeal, the parties refer to
the object in defendant’s hand as a jack handle and we do the same.
2
and said, “I’m going to bust your head open.” Officer Arreola continued to urge
defendant to leave. He also told a store security person to let defendant leave. Officer
Arreola was concerned for his safety and the safety of his children and other people.
Defendant eventually put the jack handle back in his pocket and left the store with
the shoes. U.R. saw him walk toward a bus stop on the other side of the parking lot.
Officer Arreola watched where defendant went. He saw defendant run toward the main
street, hide the shoes at a bus stop, and walk back toward the store. Mall security
personnel later recovered six to eight pairs of red women’s shoes at the bus stop.
Defendant attempted to re-enter the store but was unsuccessful because security
personnel had locked the doors. Mall security eventually made contact with defendant
and the police arrived shortly thereafter.
A jury convicted defendant of second degree robbery against U.R. (Pen. Code,
§ 2112 -- count 1.) It also convicted him of assault with a deadly weapon (§ 245,
subd. (a)(1) -- count 2) and making a criminal threat (§ 422, subd. (a) -- count 3) against
Officer Arreola. Defendant admitted a prior strike conviction for robbery and waived his
right to a jury trial on the enhancement allegations. The trial court exercised its
discretion to dismiss the penalty on the prior serious felony enhancements (§§ 1170.12,
subd. (b), 667, subd. (d)) and imposed an aggregate prison sentence of three years eight
months.
DISCUSSION
I
Defendant challenges the sufficiency of the evidence supporting his convictions
for robbery, assault with a deadly weapon, and making a criminal threat.
2 Undesignated statutory references are to the Penal Code.
3
In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v.
Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) “ ‘Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.’
[Citation.] Unless it describes facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.) The above standard of review
also applies to insufficient evidence claims involving circumstantial evidence. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘We “must accept logical inferences that the jury
might have drawn from the circumstantial evidence.” ’ ” (Ibid.) The effect of this
standard of review is that a defendant challenging the sufficiency of the evidence to
support his or her conviction bears a heavy burden on appeal. (People v. Powell (2011)
194 Cal.App.4th 1268, 1287.)
A
Defendant argues there is insufficient evidence that he intended to permanently
deprive Macy’s of the shoes he took from the store.
“Robbery is ‘the taking of personal property of some value, however slight, from a
person or the person’s immediate presence by means of force or fear, with the intent to
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permanently deprive the person of the property.’ ” (People v. Jackson (2016) 1 Cal.5th
269, 343.) Intent to permanently deprive the victim of her property may be inferred from
the surrounding facts and circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 643.)
The victim of a robbery may be an agent of the owner of the property stolen, such as a
store employee. (People v. La Stelley (1999) 72 Cal.App.4th 1396, 1401-1402.)
Substantial circumstantial evidence supports the jury’s finding that defendant
intended to permanently deprive U.R., a Macy’s employee, of the shoes he took from the
department store. When U.R. told defendant he could not take the shoes he had collected
from the store, defendant held up a jack handle, told her “I’ll bust y’all shit” and walked
toward the store exit with the shoes in his possession. Intent to steal may be inferred
when a person takes the property of another by force. (People v. Tufunga (1999) 21
Cal.4th 935, 943-944; see e.g., People v. Guerra (1985) 40 Cal.3d 377, 385.) Defendant
left the store with the shoes. There was no evidence that he paid for the shoes. He also
did not return the shoes, all indicating an intent to permanently deprive U.R. of
possession of the shoes. (In re Albert A. (1996) 47 Cal.App.4th 1004, 1008.) An intent
to permanently deprive the victim of her property may be inferred when the defendant
unlawfully takes the property. (People v. Morales (1993) 19 Cal.App.4th 1383, 1391.)
B
Defendant next claims there is insufficient evidence that he used the jack handle in
a manner that was likely to produce death or great bodily harm.
Defendant was convicted of violating section 245, subdivision (a)(1), which
penalizes “assault upon the person of another with a deadly weapon or instrument other
than a firearm.” “ ‘[A] “deadly weapon” is “any object, instrument, or weapon which is
used in such a manner as to be capable of producing and likely to produce, death or great
bodily injury.” ’ ” (In re B.M. (2018) 6 Cal.5th 528, 532-533.) A few objects, such as
dirks and blackjacks, are deadly weapons as a matter of law because of the ordinary use
for which they are designed. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029 (Aguilar).)
5
Other objects, while not deadly weapons as a matter of law, may be used in a manner
likely to produce death or great bodily injury. (Ibid.) A metal bar is not a deadly weapon
as a matter of law. (People v. Lee (1937) 23 Cal.App.2d 168, 170.)
Whether an object was used as a deadly weapon depends on how the defendant
actually used the object and not how it could have been used. (In re B.M., supra,6 Cal.5th at pp. 534-535.) Relevant considerations include the nature of the object, the
manner in which the defendant used the object, and the defendant’s intent and present
ability to use the object. (Aguilar, supra, 16 Cal.4th at p. 1029; People v. Fisher (1965)
234 Cal.App.2d 189, 193 (Fisher).)
Here, the jack handle defendant used was a 12- to 14-inch piece of metal. Metal
bars are certainly capable of inflicting serious bodily injury. (See e.g., Fisher, supra,
234 Cal.App.2d at pp. 193-194; People v. Carr (1933) 131 Cal.App. 644, 645.) And here
the jury could reasonably conclude from the manner in which defendant used the jack
handle and his words to Officer Arreola that defendant used the jack handle in a manner
capable of producing and likely to produce death or great bodily injury. (See People v.
Bernal (2019) 42 Cal.App.5th 1160, 1167-1168; People v. Clifton (1957) 148 Cal.App.2d
276, 279.) In describing what defendant did with the jack handle, Officer Arreola
testified that defendant waved the jack handle at Officer Arreola, as if defendant was
going to strike Officer Arreola. That testimony described defendant’s movements and
was not speculation as defendant contends. At that time, Officer Arreola was standing in
front of a mannequin and defendant stood behind the mannequin. Waving the jack
handle, defendant threatened to bust Officer Arreola’s head open if Officer Arreola was a
cop and defendant repeatedly stated, “You a cop. You a cop.” That Officer Arreola’s
action in urging defendant to leave the store prevented physical injury does not preclude a
conviction for assault with a deadly weapon. (In re B.M., supra, 6 Cal.5th at p. 537.) A
conviction for assault with a deadly weapon does not require actual physical contact. (Id.
at p. 535; People v. Brown (2012) 210 Cal.App.4th 1, 7.)
6
C
Defendant further asserts there is insufficient evidence that Officer Arreola was in
sustained fear as a result of defendant’s threat.
“In order to prove a violation of section 422, the prosecution must establish all of
the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will
result in death or great bodily injury to another person,’ (2) that the defendant made the
threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if
there is no intent of actually carrying it out,’ (3) that the threat -- which may be ‘made
verbally, in writing, or by means of an electronic communication device’ -- was ‘on its
face and under the circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually
caused the person threatened ‘to be in sustained fear for his or her own safety or for his or
her immediate family’s safety,’ and (5) that the threatened person’s fear was
‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-
228 (Toledo).) Defendant’s claim involves the fourth element.
“Sustained fear” refers to the emotion the victim experiences. (People v. Fierro
(2010) 180 Cal.App.4th 1342, 1349.) “Fear” is “an unpleasant often strong emotion
caused by anticipation or awareness of danger.” (Webster’s Ninth New Collegiate Dict.
(1991) p. 453.) Its primary synonyms are “dread,” “fright,” “alarm,” “panic,” “terror,”
and “trepidation,” all of which connote a “painful agitation in the presence or anticipation
of danger.” (Ibid.) “Sustained fear” refers to fear experienced for “ ‘a period of time that
extends beyond what is momentary, fleeting, or transitory.’ ” (People v. Brugman (2021)
62 Cal.App.5th 608, 634.) No specific time is required. (People v. Allen (1995) 33
Cal.App.4th 1149, 1156, fn. 6 (Allen).) Cases have found fear to be sufficiently sustained
for purposes of section 422 when the victim’s fear lasted between one minute to 15
minutes. (Fierro, at p. 1349; Allen, at pp. 1153, 1155-1156.)
7
Defendant pointed and waved a jack handle at Officer Arreola as if he was going
to strike Officer Arreola, and defendant threatened to bust Officer Arreola’s head open.
Officer Arreola was concerned for his own safety and the safety of his children, U.R., and
others. He explained he was concerned because defendant had a weapon, Officer Arreola
(a law enforcement officer) was unarmed and had no backup, his children were with him,
and there were other people around. Officer Arreola told U.R. to back up. He repeatedly
urged defendant to leave the store. He told security to lock the doors after defendant left
and to contact the police. Defendant finally left about four or five minutes after Officer
Arreola first contacted him. Believing defendant was a danger to others, Officer Arreola
continued to watch defendant and later followed defendant as he walked around the mall.
A jury could reasonably find from the above that Officer Arreola experienced fear for his
own safety and the safety of his family as a result of defendant’s threats and that his fear
was more than momentary, fleeting or transitory.
II
Defendant next contends the trial court erred in instructing the jury with an
incorrect written CALCRIM No. 875 instruction that contained the word “or” rather than
“and” in the definition of “deadly weapon other than a firearm.”
The People properly concede that the portion of the written CALCRIM No. 875
instruction defining “deadly weapon other than a firearm” is incorrect. A deadly weapon
is an object that is used in such a manner as to be capable of producing and likely to
produce, death or great bodily injury. (In re B.M., supra, 6 Cal.5th at pp. 532-533.)
The written CALCRIM No. 875 instruction provided to the jury incorrectly stated that a
deadly weapon other than a firearm is an object that is used in such a way that it is
capable of causing or likely to cause death or great bodily injury.
Nevertheless, the error was harmless beyond a reasonable doubt. (People v.
Wilson (2008) 44 Cal.4th 758, 804 (Wilson) [assessing error in written instructions
replacing “the defendant” with “a defendant” under Chapman v. California (1967)
8
386 U.S. 18 [17 L.Ed.2d 705]]; see People v. Mayfield (1997) 14 Cal.4th 668, 774,
disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) The
trial court correctly defined the phrase “deadly weapon other than a firearm” in its verbal
instructions.3 In addition, in their closing arguments, the prosecutor and defendant’s trial
counsel did not refer to the definition of “deadly weapon other than a firearm.” Neither
the prosecutor nor defendant’s trial counsel suggested to the jury that a deadly weapon is
an object that is used in such a manner as to be capable of producing or likely to produce
death or great bodily injury.
In discussing the first and fourth elements of the crime of assault with a deadly
weapon, defendant’s trial counsel urged the jury to discredit Officer Arreola’s testimony
that defendant pulled the jack handle out of his pocket and waved it. Defense counsel
argued it was not reasonable for defendant to hold several pairs of shoes and wave a jack
handle while backing out of the store. He argued that defendant had no present ability to
apply force with a deadly weapon because the jack handle remained in defendant’s
pocket during the incident. In contrast, in addressing those elements, the prosecutor
argued that defendant pulled the jack handle out of his pocket and swung it while
threatening to bust Officer Arreola with it.
The jury clearly rejected the version of events advocated by defendant’s trial
counsel and necessarily found that defendant did something with the jack handle that
would directly and probably result in the application of force upon Officer Arreola, and
when defendant so acted he had the present ability to apply force to Officer Arreola.
(People v. Murray (2008) 167 Cal.App.4th 1133, 1139; People v. Chance (2008)
44 Cal.4th 1164, 1167-1168 (Chance).) “ ‘[T]he gravamen [of assault] . . . is the
3 Although the written version of an instruction controls when a conflict exists between
the written and verbal instructions, the jury was not informed of that rule. (Wilson,
supra, 44 Cal.4th at pp. 803-804.)
9
likelihood that the force applied or attempted to be applied will result in great bodily
injury.’ ” (People v. Williams (2001) 26 Cal.4th 779, 787, italics omitted (Williams).)
The present ability element of assault focuses on the defendant’s ability to inflict injury
on the present occasion. (Chance, at pp. 1171-1172.) The jury found that defendant
committed assault.
Defendant’s trial counsel did not claim the jack handle was not a deadly weapon.
Although defense counsel argued defendant did not take the jack handle out of his
pocket, the evidence showed that defendant used the jack handle in a manner that was
capable of causing and likely to cause great bodily injury. Defendant waved the jack
handle at Officer Arreola while repeatedly threatening to bust Officer Arreola’s head
open. No contrary evidence was presented. Defendant’s actions and words showed he
used the jack handle as a deadly weapon during the encounter with Officer Arreola.
III
Defendant also contends that after the trial court verbally gave a modified
CALCRIM No. 875 instruction defining “deadly weapon other than a firearm,” it should
have reopened closing argument to allow counsel to argue whether the evidence showed
that defendant actually used the jack handle in a manner likely to cause death or great
bodily injury.
The trial court instructed the jury on the crime of assault with a deadly weapon
pursuant to CALCRIM No. 875. It told the jury the definition of the phrase “deadly
weapon other than a firearm” would be provided in another instruction. But after
instructing the jury on the lesser offense of simple assault, the trial court said it would
read the CALCRIM No. 875 instruction again because the written instruction should have
included a definition for the phrase “deadly weapon other than firearm” instead of stating
that the phrase would be defined in another instruction.
Counsel and the trial court discussed the definition of the phrase “deadly weapon
other than firearm” at a bench conference. The definition is optional language in the
10
CALCRIM No. 875 instruction, with the pertinent bracketed portion reading: “[A deadly
weapon other than a firearm is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing and likely to cause
death or great bodily injury.]” In particular, the trial court and counsel discussed whether
the definition should include the internal bracketed phrase “[that is inherently deadly or
one].” The trial court agreed with defendant’s trial counsel that the internal bracketed
phrase should not be included in the definition. The trial court verbally instructed the
jury as follows: “A deadly weapon other than a firearm is any object instrument or
weapon that is used in such a way that it is capable of causing and likely to cause death,
or great bodily injury.” The trial court’s verbal instruction is consistent with CALCRIM
No. 875. Neither the prosecutor nor defendant’s trial counsel asked to reopen closing
argument.
“In any criminal case which is being tried before the court with a jury, all requests
for instructions on points of law must be made to the court and all proposed instructions
must be delivered to the court before commencement of argument. Before the
commencement of the argument, the court, on request of counsel, must: (1) decide
whether to give, refuse, or modify the proposed instructions; (2) decide which
instructions shall be given in addition to those proposed, if any; and (3) advise counsel of
all instructions to be given.” (§ 1093.5.) “To prevent unfair prejudice, if a supplemental
instruction introduces new matter for consideration by the jury, the parties should be
given an opportunity to argue the theory.” (People v. Ardoin (2011) 196 Cal.App.4th
102, 129, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
Error in not reopening closing argument “requires reversal only if, viewing the record in
its entirety, a party ‘ “was unfairly prevented from arguing his or her defense to the jury
or was substantially misled in formulating and presenting arguments.” [Citation.]’
[Citations.] ‘The question is whether this court can “conclude that the effectiveness of
11
counsel’s argument and hence of appellant’s defense was not impaired by counsel’s
inaccurate information regarding the court’s charge.” [Citation.]’ ” (Ardoin, at p. 134.)
Even if the trial court erred in not reopening closing argument, and even if
defendant’s challenge is not forfeited due to his failure to object, defendant has not
established prejudice. Defendant’s trial counsel argued that the People had not proven
the first and fourth elements of a section 245 violation beyond a reasonable doubt. Those
elements focused on the likelihood or probability that defendant’s act would result in the
application of force and whether defendant was able to apply force on the present
occasion. (See Williams, supra, 26 Cal.4th at p. 787; Chance, supra, 44 Cal.4th at pp.
1171-1172.) Defense counsel argued defendant could not hold shoes and wave the jack
handle, and could not apply force while holding the shoes. Defendant now claims that
had the trial court reopened closing argument, his trial counsel could have argued that
defendant did not use the jack handle in a manner likely to produce death or bodily
injury. But defendant’s trial counsel had already addressed whether defendant used the
jack handle in a manner that was capable of causing and likely to cause great bodily
injury. Defendant fails to show that any difference in a second closing argument would
have made a difference in the verdict.
IV
Defendant further argues the trial court erred in failing to sua sponte instruct on
the lesser-included offense of attempted robbery. He claims there was substantial
evidence from which a jury could reasonably conclude defendant only intended to
temporarily deprive U.R. of the shoes.
A trial court must sua sponte instruct on an uncharged, lesser-included offense
only where there is substantial evidence which, if accepted, would absolve the defendant
from guilt of the greater offense but not the lesser. (People v. Waidla (2000) 22 Cal.4th
690, 733.) Substantial evidence does not mean any evidence no matter how weak; it
refers to evidence from which a jury composed of reasonable persons could conclude
12
that the lesser offense, but not the greater, was committed. (People v. Souza (2012)
54 Cal.4th 90, 116.) Every lesser-included offense supported by substantial evidence
must be presented to the jury. (People v. Breverman (1998) 19 Cal.4th 142, 155
(Breverman).) Attempted robbery is a lesser-included offense of robbery. (People v.
Crary (1968) 265 Cal.App.2d 534, 540.)
The trial court did not err in this regard. There is no evidence defendant intended
to temporarily deprive U.R. of possession of the shoes. Defendant left the store with the
shoes by use of force or fear. He took the shoes to a bus stop that was located on the
other side of the mall parking lot. The fact that stolen property is subsequently
abandoned or discarded does not compel the conclusion that the defendant intended to
deprive the owner of the property only temporarily. (People v. Deleon (1982) 138
Cal.App.3d 602, 606; People v. Gibbs (1970) 12 Cal.App.3d 526, 549.) There is no
evidence defendant told anyone where the shoes were, took actions to ensure that the
shoes would be returned to the store, or intended that the shoes be returned to the store.
He did not return the shoes when he attempted to re-enter the store. Defendant’s trial
counsel conceded during his closing argument that defendant intended to permanently
deprive the store of possession of the shoes.
V
Defendant also claims the trial court erred in denying his request to instruct on
attempted criminal threat because there was substantial evidence from which a jury could
reasonably conclude that Officer Arreola was not in sustained fear.
Attempted criminal threat is a lesser-included crime of making a criminal threat.
(People v. Chandler (2014) 60 Cal.4th 508, 514-515; Toledo, supra, 26 Cal.4th at pp.
226, 235.) “ ‘[I]f a defendant, . . . acting with the requisite intent, makes a sufficient
threat that is received and understood by the threatened person, but, for whatever reason,
the threat does not actually cause the threatened person to be in sustained fear for his or
her safety even though, under the circumstances, that person reasonably could have been
13
placed in such fear, the defendant properly may be found to have committed the offense
of attempted criminal threat.’ ” (Chandler, at p. 515.)
The trial court denied the request by defendant’s trial counsel to instruct on
attempted criminal threat as a lesser-included offense of making a criminal threat,
concluding that the evidence presented at the trial did not support such an instruction.
We conclude that even if there was instructional error in this regard, there was no
reasonable probability that defendant would have obtained a more favorable result if the
trial court had instructed on attempted criminal threat. (Breverman, supra, 19 Cal.4th at
pp. 165, 177-178 [applying People v. Watson (1956) 46 Cal.2d 818 harmless error test].)
Officer Arreola’s testimony established that he experienced sustained fear.
VI
Defendant next argues his trial counsel rendered ineffective assistance by not
requesting a jury instruction on the lesser-related offense of brandishing, not seeking
to reopen closing argument, and failing to object to the erroneous written CALCRIM
No. 875 instruction.
To establish ineffective assistance of counsel, a defendant must prove that his or
her (1) trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the deficiency
resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389
(Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]
(Strickland).) An ineffective assistance claim fails if the defendant makes an insufficient
showing on either of those components. (People v. Holt (1997) 15 Cal.4th 619, 703;
Strickland, at p. 687.)
We review trial counsel’s performance with deferential scrutiny, indulging a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance and recognizing the many choices that attorneys make in handling
cases and the danger of second-guessing an attorney’s decisions. (Maury, supra,
14
30 Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 689.) “It is particularly difficult to
prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction
will be reversed for ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission, (2) counsel
was asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009,
original italics.)
Defendant must also affirmatively prove prejudice to establish ineffective
assistance. (People v. Mickel (2016) 2 Cal.5th 181, 198.) “[T]he record must
demonstrate ‘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.’ [Citation.]” (Maury,
supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more
favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland, supra,466 U.S. at pp. 693-694.) It is not enough for defendant to show that errors had some
conceivable effect on the outcome of the case. (Ledesma, at p. 217.)
Defendant contends his trial counsel rendered ineffective assistance by not
requesting a jury instruction on brandishing, a lesser-related offense of assault with a
deadly weapon. As pertinent here, brandishing is the drawing or exhibiting of a deadly
weapon other than a firearm in the presence of another person in a rude, angry or
threatening manner or the unlawful use of a deadly weapon other than a firearm in a fight
or quarrel. (§ 417, subd. (a).) Defendant fails to show that there was no rational tactical
purpose or satisfactory explanation for defense counsel’s omission. Defendant’s trial
counsel argued to the jury that defendant did not pull the jack handle out of his pocket
and wave it, as Officer Arreola testified. A brandishing instruction would have been
inconsistent with that theory of the case. “The decision of how to argue to the jury after
15
the presentation of evidence is inherently tactical.” (People v. Freeman (1994) 8 Cal.4th
450, 498.) We will not second guess counsel’s tactical decision. Defendant fails to show
that his trial counsel’s failure to ask for an instruction on brandishing was deficient
representation.
Defendant next asserts that his trial counsel was deficient in not seeking to reopen
closing argument after the trial court added the definition of “deadly weapon other than a
firearm” to the CALCRIM No. 875 instruction, and in not objecting to the erroneous
written CALCRIM No. 875 instruction. For the reasons we explained in parts II and III
of this opinion, defendant fails to establish the requisite prejudice.
VII
Defendant asserts that cumulative error requires reversal of his conviction for
assault with a deadly weapon. We have not identified any prejudicial error.
Nevertheless, trial court error, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error. (People v.
Hill (1998) 17 Cal.4th 800, 844.) Considering the entire record here, however, we
conclude the error in the written CALCRIM No. 875 instruction and any error in
declining to reopen closing argument did not deprive defendant of a fair trial and do not
require reversal of the judgment. As we have explained, the trial court correctly defined
the phrase “deadly weapon other than a firearm” in its verbal instruction, there was strong
evidence that defendant used the jack handle in a manner that was capable of causing and
likely to cause great bodily injury, defendant’s trial counsel addressed in his closing
remarks whether defendant used the jack handle in a manner that was capable of causing
and likely to cause great bodily injury, and the jury necessarily found that defendant did
something with the jack handle that would directly and probably result in the application
of force upon Officer Arreola and when defendant so acted he had the present ability to
apply force to Officer Arreola.
16
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
DUARTE, J.
17