People v. Alexander CA4/1

Filed 12/3/20 P. v. Alexander CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077132
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282614 )
LAMAR ALEXANDER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of San Diego
County, Melinda J. Lasater, Judge. Affirmed; remanded with directions.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for
Plaintiff and Respondent.
Lamar Alexander was charged with forcible oral copulation (Pen.
Code,1 § 287, subd. (c)(2)(a); count 1); two counts of willful infliction of
corporal injury (§ 273.5, subd. (a); counts 2 and 4); and one count of
unlawfully taking or driving a vehicle valued over $950 without the owner’s
consent (Veh. Code, § 10851, subd. (a); count 3). As to counts 2 and 4, it was
alleged that Alexander personally inflicted great bodily injury on the victim
(§ 12022.7, subd. (e)). The information also alleged Alexander had a prior
strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12), a prior serious felony
conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), a prior prison term
(§ 667.5, subd. (a)), and two prior convictions that rendered him ineligible for
probation (§ 1203, subd. (e)(4)).
A jury convicted Alexander of count 2, but found not true the allegation
that he personally inflicted great bodily injury on the victim. The jury
acquitted Alexander on counts 1 and 3 and failed to reach a verdict on
count 4. The court then granted the prosecution’s motion to dismiss count 4.
In a bifurcated proceeding, Alexander admitted he had a prior strike
conviction and two prior convictions that rendered him ineligible for
probation.
The court sentenced Alexander to prison for the upper term of four
years, which was doubled to eight years for the prior strike conviction. In
addition, the court issued two protective orders under section 136.2—one for
1 Statutory references are to the Penal Code unless otherwise specified.
2
the victim in the instant matter (S.L.) and the other for a witness (K.S.)2 in
this case who was a victim in a previous case against Alexander.
Alexander appeals, challenging only the issuing of the protective order
against K.S. Although he did not object to the protective order, Alexander
maintains the order was unauthorized; thus, he can raise this objection at
any time. We conclude the court was authorized to issue a protective order in
favor of K.S. As such, we determine Alexander forfeited his challenge here
and affirm.
FACTUAL BACKGROUND
Alexander does not challenge his conviction, and the parties do not
dispute the majority of the facts. Therefore, we will adopt the factual
summary from the respondent’s brief to provide background for our later
discussion of the protective order issued in favor of K.S.
Prosecution
Around March of 2019, S.L. met Alexander at a Jewish community
services center in San Diego. S.L. and Alexander were both homeless and
lived out of their cars, which they parked in the parking lot at the community
services center. They became friends and then began a sexual relationship
on Easter of that year. Alexander’s car was subsequently damaged in a car
accident, and he stayed with S.L. in her car. They occasionally stayed in
motels.
2 This witness’s name was spelled three different ways in the record. We
identify the witness by her initials based upon the spelling of her name as it
appears in the reporter’s transcript. From our review of the record, it
appears that the different spellings were simply clerical errors. There was
only one witness who testified at trial, who was not the victim of the
underlying offenses, and also was the subject of a protective order. To avoid
confusion, we refer to this witness as “K.S.” throughout this opinion.
3
On June 8, 2019, they were staying at a motel in San Diego when
Alexander choked S.L. while she was on the bed.3 S.L. could not breathe and
felt Alexander was going to kill her. S.L. was “close to blacking out” when
Alexander finally released his grip. S.L. suffered bruising to her neck, face,
and eyes. She did not report the incident to the police.
A few days later on June 12, while she was driving, S.L. noticed a car
following her and believed it was Alexander. She panicked and called the
police. When the police arrived, S.L. and the officer checked and confirmed
that it was not Alexander in the car S.L. believed was following her. After
that incident, S.L. told Alexander that their relationship was over.
Alexander proceeded to call S.L. and told her that he had no means of
transportation. S.L. eventually gave in and drove him to the showers at the
beach and to work. He reimbursed her for gas. Although they did not
resume their relationship, S.L. also agreed to stay at motels with Alexander
again.
On July 21, 2019, S.L. and Alexander checked in at the Days Inn on
Adobe Falls Road after they bought groceries. They both drank beer and
other alcoholic drinks in the motel room. At some point thereafter, Alexander
left the room. She called Alexander two or three times and sent him at least
three text messages; he did not pick up the phone or respond to her messages.
When Alexander returned to the motel room, he told S.L. that he went
to buy groceries for breakfast in a matter-of-fact manner. S.L. was very
angry. Alexander then began cooking and made himself a drink. S.L. and
Alexander began to argue. Alexander approached S.L., who was sitting on
one of the two beds, and pulled her feet out from underneath her, dragged her
3 The jury did not reach a verdict on count 4, which was based on the
June 8 incident.
4
to the foot of the bed, and pulled off her pants and underwear. When S.L.
kicked him, Alexander punched S.L.’s leg. When she managed to kick him
again, Alexander got on top of her, straddled her, and punched her face with
both of his fists.
At some point during the attack, S.L. called 911. The police eventually
showed up to the motel room and S.L. was taken to the hospital by an
ambulance. S.L. suffered bruising and cuts to her face and her hand.
Specifically, her nose was cut and bleeding, she had cuts on her eyelid and
chin, and her eyes were swollen shut. S.L. also had a bruise on her leg from
Alexander punching it.
K.S., Alexander’s ex-wife, testified at trial. They were married for five
years but had been in a relationship for 22 years. When she was 16 years
old, Alexander beat K.S. at his cousin’s house after she made a comment
about him going to a baseball game with friends. He pulled her by the hair
into the bathroom and gave her a bloody nose. He cried, apologized, and said
it would never happen again. On a subsequent occasion, Alexander choked
K.S. with his hands in his grandmother’s car until she lost consciousness.
After their daughter was born in 1987, Alexander choked K.S. again to
take money she had saved to buy a stroller. He subsequently choked her
again after they had an argument in Golden Hill. He rolled up a towel, came
up from behind her, and choked her with the towel until she told him where
she had hidden money.
After their son was born in 1993, Alexander hit K.S. in the head as she
was driving them home from a Chargers game. When their son was 10 years
old, Alexander and K.S. had an argument while they were staying in a hotel
on New Year’s Eve. K.S. had refused to give Alexander the car keys because
they had been drinking. After Alexander demanded the keys from K.S., he
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threatened her, “You need to release the car or I’m going to come back and
throw you over the balcony.”
In 2007, before she left him, they were in Temecula when she came
home to Alexander pacing. When Alexander discussed their daughter and
son-in-law’s relationship, K.S. told Alexander that it was not their business
and they should stay out of it. Alexander became irate and threw a meat
cleaver at K.S. The cleaver flew by K.S.’s head and their six-month-old
grandson. That night, Alexander fought with K.S. and threw her several
times onto the bed. K.S. went to work with bruises on her arm. After that
incident, K.S. stopped making excuses for Alexander and left him. She called
the police to escort her while she retrieved some of her belongings from their
house. Alexander continued to call K.S. and send her text messages as well
as call her friends.
In January 2008, K.S. obtained a restraining order against Alexander.
On February 7, 2008, K.S. arrived at work and opened her car door to
get out when she noticed Alexander running up to her. He reached her
driver’s side door and screamed at her. He then began punching her on the
left side of her head. He next bit her left ear. He dragged K.S. out of her car
and pulled her toward his car as she tried to resist by grabbing onto other
cars in the parking lot. When she fell to the ground, Alexander began to kick
her and told her to get up. A coworker heard K.S. screaming and grabbed
Alexander. Meanwhile, K.S. was on top of the hood of a car. Alexander then
bit K.S. in the chest. K.S. somehow managed to get away and got into her
car. As she reversed her car to drive away, she observed Alexander reversing
his own car “dead straight” toward her and with “full force.” He hit a pole
before driving forward and striking K.S.’s car. Alexander then got out of his
car, pulled a bundle of firewood out of his car, and threw it into K.S.’s rear
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windshield, smashing it. He next reached into K.S.’s car, through the broken
windshield, grabbed ice tea bottles, and threw them at her. At that point,
K.S.’s coworkers pinned Alexander to the ground, helped K.S. out of her car
through the passenger side door, and escorted her inside.
Defense
Alexander called several character and law enforcement witnesses, as
well, and testified in his defense. Specifically, he testified that S.L. charged
at him on June 8, 2019, because she wanted to go outside and see a brawl.
She ran into his hands and that was the extent of the physical altercation.
As for the night of July 21, 2019, Alexander testified that he told S.L. he was
going to take her car to the store. According to Alexander, they had
consensual oral sex. After he came back to the hotel room, they argued and
S.L. told him that she called the police because he stole her car. When the
police showed up at their room, S.L. put her arms around Alexander and
started screaming to the police that they would have to break down the door.
To get her off of him and reach the door, Alexander began to swing his elbows
and struck her several times with his left and right elbows. He also “did a
couple of heel kicks to get her off [him].”
DISCUSSION
I
THE PROTECTIVE ORDER
A. Alexander’s Contentions
Alexander argues the court lacked the statutory authority under
section 136.2 to issue a protective order as to K.S. Specifically, he argues
that section 136.2 does not apply in the instant matter because the protective
order issued after he was convicted and K.S. is not a victim as defined in the
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statute. Alexander further argues good cause did not support the issuance of
the protective order as to K.S.
B. Background
Alexander admitted that he had a prior strike conviction for attempted
murder. The victim in that case was K.S. K.S. testified against Alexander in
the instant matter.
At the sentencing hearing, Alexander’s trial counsel noted on the record
that the prosecution was seeking ten-year protective orders for S.L. and K.S.
He did not object to the orders, stating “we don’t have any issues with
[them].”
According to the probation report, Alexander was sentenced to seven
years in prison for his 2008 conduct that resulted in convictions for attempted
murder and assault. He was paroled in 2014 and discharged from parole in
2016. The probation officer noted that “[a]lthough he was law abiding after
his release from prison, within three years of discharging from parole, he is
now again before the Court for a felony domestic violence case involving
injury to a previous significant other.”
The trial court subsequently signed off on the protective orders and
served Alexander with them. The orders prohibited any contact with S.L.
and K.S. and indicated they were issued under section 136.2 and would
expire after 10 years.
C. Analysis
As a threshold matter, we observe that Alexander did not object in the
trial court to the issuance of a protective order as to K.S. In fact, his attorney
agreed to the issuance of that order. Typically, under such circumstances, we
would find this issue forfeited. (People v. Trujillo (2015) 60 Cal. 4th 850, 856-
857.) However, Alexander contends forfeiture is not applicable here because
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the challenged protective order is an unauthorized sentence, and, as such,
this issue can be raised for the first time on appeal. (See People v. Robertson
(2012) 208 Cal. App. 4th 965, 995.) As we explain post, we determine that the
trial court was authorized to issue the subject protective order; thus,
Alexander forfeited his challenge here by not objecting in the trial court.
Alexander first argues the protective order in favor of K.S. is not
authorized under section 136.2 because that statute does not provide for post-
conviction protective orders. To this end, he urges us to follow People v.
Corrales (2020) 46 Cal. App. 5th 283 (Corrales). Alexander’s reliance on that
case is misplaced.
In this matter, in executing both the protective orders, the court
checked a box on each of the form orders indicating it was issuing the
protective orders under section 136.2. Section 136.2 authorizes protective
orders during the pendency of criminal proceedings and as prejudgment
orders. (See Corrales, supra, 46 Cal.App.5th at pp. 285-286.) Its purpose is
to “ ‘ “protect victims and witnesses in connection with the criminal
proceeding in which the restraining order is issued in order to allow
participation without fear of reprisal.” ’ [Citation.]” (Id. at p. 286.)
In Corrales, the appellate court reversed the trial court’s postjudgment
protective order issued under section 136.2 that prohibited the defendant
from coming within 100 yards of a certain area.4 The appellate court
explained that “section 136.2 is not the proper vehicle for obtaining a
postjudgment restraining order because that statute authorizes protective
orders only during the pendency of criminal proceedings . . . .” (Corrales,
4 The defendant had been convicted of misdemeanor unlawful burning of
property of another in violation of section 452, subdivision (d). The defendant
had set fire to a palm tree next to a strip mall. (Corrales, supra, 46
Cal.App.5th at p. 285.)
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supra, 46 Cal.App.5th at p. 287.) However, the appellate court explicitly
noted that subdivision (i)(1) of section 136.2 authorizes postjudgment orders
in certain circumstances. (Corrales, at pp. 286, 287, fn. 3.) One such
circumstance is a crime involving domestic violence, like the instant matter.
(See id. at p. 287, fn. 3; see § 136.2, subd. (i)(1).)
Here, the People argue the court simply made a clerical error and
intended to check the box indicating that it was issuing the protective order
under section 136.2, subdivision (i)(1). Alexander maintains we cannot make
that assumption. The People have the better argument.
It is undisputed that Alexander was convicted of a species of domestic
violence, more specifically, willful infliction of corporal injury. Thus, he
would be subject to the issuance of a protective order under section 136.2,
subdivision (i)(1).5 From the context presented in the record, clearly such a
protective order was the aim of the prosecution. Indeed, at sentencing
Alexander’s trial counsel acknowledged that the prosecution was seeking two
5 Section 136.2, subdivision (i)(1) provides: “When a criminal defendant
has been convicted of a crime involving domestic violence as defined in
Section 13700 or in Section 6211 of the Family Code, a violation of
subdivision (a) of Section 236.1, Section 261, 261.5, 262, subdivision (a) of
Section 266h, or subdivision (a) of Section 266i, a violation of Section 186.22,
or a crime that requires the defendant to register pursuant to subdivision (c)
of Section 290, the court, at the time of sentencing, shall consider issuing an
order restraining the defendant from any contact with a victim of the crime.
The order may be valid for up to 10 years, as determined by the court. This
protective order may be issued by the court regardless of whether the
defendant is sentenced to the state prison or a county jail or subject to
mandatory supervision, or whether imposition of sentence is suspended and
the defendant is placed on probation. It is the intent of the Legislature in
enacting this subdivision that the duration of a restraining order issued by
the court be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of a victim and the victim’s
immediate family.”
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such orders and that he did not object to them. The court later issued the
orders. It simply inadvertently checked the wrong boxes. This is clear
scrivener’s error, which we may order the trial court to correct. (See People v.
Mitchell (2001) 26 Cal. 4th 181, 185.)
Having determined that the court was issuing the protective order as to
K.S. under section 136.2, subdivision (i)(1), we next turn to Alexander’s claim
that K.S. is not a victim as defined by the statute.
The standard for whether an individual is a victim for the purposes of a
criminal protective order is broad. Victim is defined in section 136,
subdivision (3), as “any natural person with respect to whom there is reason
to believe that any crime as defined under the laws of this state or any other
state or of the United States is being or has been perpetrated or attempted to
be perpetrated.” (§ 136, subd. (3); see People v. Beckemeyer (2015)
238 Cal. App. 4th 461, 465; People v. Race (2017) 18 Cal. App. 5th 211, 219 [the
term victim “must be construed broadly to include any individual against
whom there is ‘some evidence’ from which the court could find the defendant
had committed or attempted to commit some harm”].) A court may consider
all competent evidence before it in determining whether to issue a criminal
protective order pursuant to section 136.2. (Race, at p. 220.)
Here, it is undisputed that Alexander committed a crime involving
domestic violence against K.S. And Alexander even concedes “it would seem
that [K.S.] would be covered under” section 136.2, subdivision (i)(1) “on its
face.” However, Alexander argues that courts have not addressed whether
victims of previous crimes by a defendant would qualify as victims under the
statute, especially when “no evidence was presented” that they need any
protection from the defendant. Alexander also points out that his crimes
against K.S. were over ten years old.
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In support of his position, Alexander asks this court to follow Ritchie v.
Konrad (2004) 115 Cal. App. 4th 1275 (Ritchie). That case is not helpful here.
In Ritchie, the court was not determining the definition of victim for a
protective order under section 136.2, subdivision (i)(1). Instead, the court
was concerned about a renewal of a protective order under Family Code
section 6345. In construing that statute, the appellate court noted “in
contested cases, a court is only justified in ordering an extension of such an
order where it finds to do so will advance the legislative purpose of
preventing abuse. This means it must find evidence there is some reasonable
risk, at least, such abuse will occur sometime in the future if the protective
order is not renewed.” (Ritchie, at p. 1287.)
In addition, Alexander’s reliance on Ritchie actually undermines his
argument that the protective order in favor of K.S. is an unauthorized
sentence. “[A] sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case.”
(People v. Scott (1994) 9 Cal. 4th 331, 354.) However, the appellate court in
Ritchie did not address an unauthorized sentence, but instead, discussed
what evidence was required for renewal of a restraining order under Family
Code section 6345. (See Ritchie, supra, 115 Cal.App.4th at p. 1287.)
Further, Alexander does not argue that K.S. could never be a victim for
purposes of a protective order under section 136.2, subdivision (i)(1). Rather,
he maintains “no evidence was presented that she needed any protection
from [him].” In other words, Alexander is arguing that K.S.’s circumstances
do not warrant a protective order under that subdivision. Specifically, he
observes that a protective order is not warranted in her case because there is
no evidence she had “any reasonable apprehension of fear,” K.S. had not seen
Alexander for over ten years since he pled guilty to his crime against her, and
12
there was no evidence that K.S. requested a protective order. These are all
arguments he could have raised in the trial court that would address whether
a protective order was warranted under the circumstances. These are not
arguments that the court lacked the authority to issue the protective order.
In short, K.S. was a victim as defined under section 136,
subdivision (3). Moreover, it is undisputed that Alexander was convicted of a
crime of domestic violence against her thus triggering the possibility of a
protective order under section 136.2, subdivision (i)(1). We therefore
conclude the court was authorized to issue a protective order in K.S.’s favor
after trial in the instant action. K.S. testified against Alexander in his
current domestic violence case, she was previously married to Alexander, and
was the victim of domestic violence at the hands of Alexander. If Alexander
did not believe these circumstances warranted a protective order as to K.S.,
he could have objected. He did not do so, and thus forfeited his objections
here. (See People v. Trujillo, supra, 60 Cal.4th at pp. 856-857.)
In somewhat of a throw-away argument, Alexander contends that if we
find forfeiture on appeal, then of necessity his counsel provided ineffective
assistance of counsel under the Sixth Amendment. Alexander bears the
burden of showing counsel’s representation was defective, and he was
prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690
(Strickland).) On the record before us, Alexander cannot satisfy either prong
of the Strickland test.
“ ‘In order to establish a claim of ineffective assistance of counsel,
defendant bears the burden of demonstrating, first, that counsel’s
performance was deficient because it “fell below an objective standard of
reasonableness [¶] . . . under prevailing professional norms.” [Citations.]
Unless a defendant establishes the contrary, we shall presume that “counsel’s
13
performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial
strategy.” [Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of ineffective
assistance of counsel must be rejected “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If a defendant meets the burden of
establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ ” (People v. Lopez (2008) 42 Cal. 4th
960, 966; see Strickland, supra, 466 U.S. at pp. 690, 694.)
Alexander contends there is no satisfactory explanation for his trial
counsel’s failure to object to the issuance of a protective order in favor of K.S.
Although defense counsel’s reasons for failing to object are not explicitly
stated in the record, there is a plausible tactical reason for a lack of objection.
When counsel represented to the court that he did not “have any issues with”
the issuance of protective orders for both K.S. and S.L., he was arguing to
minimize the amount of prison time Alexander would receive. Defense
counsel could have believed it prudent strategy to agree to the issuance of
protective orders in favor of two victims of domestic violence perpetuated by
Alexander to persuade the trial court that it would be safe to give Alexander
a lesser sentence. Alternatively stated, counsel could have believed the
issuance of protective orders against Alexander’s victims would decrease the
amount of prison time his client would have to serve.
The decision whether to object to an argument is an inherently tactical
one that is not ordinarily reviewable on appeal. (People v. Harris (2008) 43
14
Cal. 4th 1269, 1290; People v. Frierson (1991) 53 Cal. 3d 730, 749.) And
usually, “ ‘where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel’s
acts or omissions.’ ” (People v. Nguyen (2015) 61 Cal. 4th 1015, 1051.) Under
these principles, no ineffective assistance of counsel appears here.
In addition, Alexander’s claim of ineffective assistance fails for the
absence of a showing of prejudice. (See People v. Fairbank (1997) 16 Cal. 4th
1223, 1241.) “A defendant must prove prejudice that is a ‘ “demonstrable
reality,” not simply speculation.’ ” (Ibid.) Here, Alexander has offered no
argument that he suffered prejudice. Instead, he merely repeats his
argument that the protective order was unauthorized and then assumes the
court would have sustained an objection to it. Put differently, Alexander
simply asks us to assume he was prejudiced. We will not do so. As such, he
has not shown he was prejudiced by his counsel’s failure to object.
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DISPOSITION
The order is affirmed. We remand this matter to the superior court
with instructions that the court indicate the protective order as to K.S. was
issued under section 136.2, subdivision (i)(1). To avoid any confusion and to
correct an additional scrivener’s error, we also direct the court to make the
same correction on the protective order form as to S.L.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
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