THE PEOPLE, Plaintiff and Respondent, v. RAMON HERNANDEZ BERNAL, JR., Defendant and Appellant.
H045620 (Monterey County Super. Ct. No. SS161881)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 12/5/19
CERTIFIED FOR PUBLICATION
A
I. BACKGROUND
Defendant committed home and auto burglaries in Monterey County throughout 2016. In March of that year he broke into a house and stole
In June, defendant broke into a car parked in a home driveway, which a neighbor witnessed and reported to 911. When defendant was arrested later that day, he had in his possession the items taken from the car, as well as other stolen property. Defendant was released on bail.
In August, a local business owner reported stolen from his car two briefcases containing computers, cash, and credit cards. Purchases were made with the credit cards, including one of over $500 at a nearby grocery store. Security video from the store showed defendant making that purchase.
In October, a man with his fiancée and newborn baby returned to their car in a supermarket parking lot to find defendant inside, rifling through the center console. The man grabbed defendant, told him to empty his pockets, then blocked his path when he tried to leave. Defendant took out a folding knife, displayed it and asked, “Do you want to do this?” Defendant then fled to his car and drove away. He was arrested a week later and again released on bail. Days later, a woman returned to her car after shopping and noticed several things missing that had been inside, including her work identification badge and a personal check. The badge and check were found in defendant‘s pocket when he was arrested later that day on a warrant from the August incident. He was again released on bail.
In December, defendant broke into two more cars: one in a shopping center parking lot and another outside a gym. From the car outside the gym he stole a wedding ring and other jewelry. Three days before Christmas, police obtained a warrant to search defendant‘s apartment for stolen property. When the warrant was executed, defendant was there with his girlfriend and two children––a six-year-old and a one-month-old. Along with jewelry, multiple driver‘s licenses, and numerous other stolen items, police found two methamphetamine pipes; one in a bathroom drawer showed signs of recent use.
The District Attorney charged defendant with residential burglary (
Defendant moved at sentencing to strike the two prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion, finding that “the defendant‘s record is simply too significant, and the unrelenting behavior that‘s present in this case is also too significant for the Court to say that this is outside the spirit of the Three Strikes Law.” Because of the two prior strike offenses, defendant was sentenced to 85 years to life: 35 years to life for the residential burglary with two prior serious felony enhancements; a fully consecutive 35 years to life for the assault with a deadly weapon with two prior serious felony enhancements; plus an aggregate 15-year determinate term for the remaining counts.
II. DISCUSSION
A. DEFENSE COUNSEL‘S ARGUMENT DID NOT VIOLATE DEFENDANT‘S RIGHTS
Defendant contends that his constitutional rights were violated when, during closing argument, his attorney conceded guilt and called him a “bad guy.” Faced with the incriminating evidence presented at trial––which included video of defendant committing some of the crimes––counsel did not contest every charge when addressing the jury in closing argument. Regarding the auto burglary charge stemming from defendant being caught inside a car in the supermarket parking lot, counsel said, “And Mr. Bernal was there[,] obviously. […] Breaking into the car, which clearly, by the way, he is, because he‘s inside the car. […] So not to give away that store, but that sounds like [on that count] you should come back with a guilty verdict[,] right?” Then––in arguing defendant was nonetheless not guilty of assault with a deadly weapon for displaying a knife during the same incident––counsel noted, “By the way, it‘s not that he‘s rightfully in the car. […] No. He‘s a bad guy at that point. He‘s a criminal. He‘s breaking into somebody‘s car. But at that point has he assaulted [the victim] is the question[,] right?” In his concluding argument to the jury, counsel stopped short of an outright concession but specifically asked for acquittal only on the assault with a deadly weapon and child endangerment counts: “We‘re asking you to return verdicts of not guilty as to Count 3, that‘s the 245; not guilty as to child endangering, and to all the other counts, the other eight counts I‘m going to trust that you will review the evidence very carefully and render a just verdict.”
Citing McCoy v. Louisiana (2018) 138 S.Ct. 1500, __ U.S. ___ (McCoy), defendant contends his trial attorney‘s method of argument violated his Sixth Amendment right to counsel. The Supreme Court
Defendant also contends that counsel‘s closing argument was functionally equivalent to a guilty plea and therefore required his express consent and waiver of the right to confront witnesses and the right to avoid self-incrimination. He relies on People v. Farwell (2018) 5 Cal.5th 295, 299–300, which held that a factual stipulation encompassing all elements of a charged crime is tantamount to a guilty plea. In such a case the record must reflect the defendant voluntarily and intelligently waived the implicated constitutional rights. But Farwell dealt with a stipulation in trial which established the defendant drove a motor vehicle when his license was suspended and that he knew it was suspended––all the elements of the charged driving on a suspended license offense. Because the jury in that case was instructed to accept the stipulated facts, the stipulation “conclusively established the stipulated facts as true and completely relieved the prosecution of its burden of proof.” (Id. at p. 300.)
There was no factual stipulation here. And arguments of counsel do not have the same effect. (See CALCRIM, No. 222 [“Nothing that the attorneys say is evidence.“].) The jury found defendant guilty of the eight charges that were not contested in closing argument because the prosecution
Absent a contrary directive or timely objection from the client, conceding guilt on the charges for which there was overwhelming evidence would be a reasonable strategy to garner credibility and cultivate a more favorable environment for the jury‘s consideration of defense arguments regarding the charges that were reasonably in dispute. This was not a “fail[ure] to function in any meaningful sense as the Government‘s adversary.” (See United States v. Cronic (1984) 466 U.S. 648, 666.) To the contrary: it was a considered effort to achieve the best result possible for the client under difficult circumstances. That it was ultimately unsuccessful does not render it incompetent or unconstitutional.
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ASSAULT AND CHILD ENDANGERMENT COUNTS
Defendant contends there is insufficient evidence that he committed assault with a deadly weapon (
Defendant was convicted of assault with a deadly weapon on the theory that he intentionally used a weapon in a way likely to result in force being applied on another person. (See CALCRIM No. 875.) The prosecution argued defendant committed the crime by pulling out a knife when confronted by the owner of a car he was burglarizing. Defendant asserts there is insufficient evidence of both the intent element and the likely application of force element because he took out the knife only in response to the victim‘s demand that defendant empty his pockets, and the knife blade remained folded in the handle. Defendant points out that the victim testified the blade was not exposed and the victim‘s fiancée did not remember seeing a knife at
Defendant was convicted of misdemeanor child endangerment (
C. DEFENSE COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE
Defendant contends he received ineffective assistance of counsel because his attorney failed to object to evidence of drug possession and disparaged him during closing argument. To prevail on a claim of ineffective assistance of counsel, defendant must show that his attorney‘s performance fell below prevailing professional norms and that the deficient performance affected the outcome of the trial. (Strickland v. Washington (1984) 466 U.S. 668, 691–692.) We view counsel‘s performance deferentially: there is a strong presumption that counsel performed within the wide range of acceptable professional assistance, and defendant “must affirmatively show counsel‘s deficiency involved a crucial
Defendant complains that his attorney failed to object during trial to evidence of drug possession that was irrelevant and prejudicial. He notes two occasions where drug evidence came in without objection: a police officer who arrested defendant in June testified that cocaine and methamphetamine were found in defendant‘s car; and an officer who arrested him in October testified that he found methamphetamine in defendant‘s pants pocket. “Whether to object to inadmissible evidence is a tactical decision; because trial counsel‘s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel‘s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621 crime spree could ultimately be more beneficial than harmful by providing some explanation for the conduct. Even were we to find no possible strategic reason for not objecting to that drug evidence, we would also find the omissions unlikely to have affected the outcome of the trial. Evidence of methamphetamine use was properly admitted as relevant to the child endangerment charge, reducing the impact of evidence of drug possession on other occasions. And the overall strength of the prosecution case militates against a finding that the evidence of additional drug possession tipped the scales in any meaningful way.
Defendant also complains that his attorney‘s negative comments about him during closing argument while essentially conceding guilt on some charges constituted ineffective assistance of counsel. He takes issue with counsel telling the jury that when defendant was inside a victim‘s car, “He‘s a bad guy at that point. He‘s a criminal. He‘s breaking into somebody‘s car. But at that point has he assaulted [the victim] is the question[,] right?” Defendant cites authority holding that failure to give any closing argument is ineffective assistance of counsel and posits that conceding guilt on a charge while calling him a criminal was worse than making no argument at all. But as we have discussed, counsel‘s argument appears to have been a calculated strategy to concede the near inevitable outcome on certain charges in order to gain credibility with the jury and pursue acquittal on charges where the evidence was not as strong. Trial counsel was not constitutionally ineffective.
D. NO SENTENCING ERROR OCCURRED
Defendant contends the trial court committed several sentencing errors: by denying his motion to strike the prior strike allegations; by imposing a consecutive term for assault with a deadly weapon in violation of the
1. Denial of Romero Motion
Defendant twice asked the trial court to strike his prior strikes; once before trial and again at sentencing. (See People v. Superior Court (Romero), supra, 13 Cal.4th 497.) Both times the court declined to do so. We review the denial of such a motion for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) That deferential standard asks not whether the trial court‘s decision was correct in the sense that it is the same decision we would have made; rather, it asks whether the court‘s decision falls within the range of outcomes permitted by the controlling law. The controlling law in this situation is
The trial court did not abuse its discretion in determining that defendant‘s circumstances fall within the spirit of the three strikes law. He had two prior strike offenses, a 2010 conviction for residential burglary (
2. Consecutive Sentence for Assault with a Deadly Weapon
Defendant asserts that the trial court erred by not applying
Defendant contends his sentence on the assault with a deadly weapon count should have been stayed because sentence was imposed on the auto burglary count, and the two crimes had the same objective and arose from the same incident (breaking into a car in the supermarket parking lot). The trial court found otherwise, indicating at sentencing that the burglary “is related to the assault, but it is still separate. It‘s the intended original crime that day when the defendant entered the car in broad daylight. He tried to steal items out of the car before he was stopped. […] This is what led to the assault.” That finding of separate objectives is supported by substantial evidence. The evidence indicates defendant initially intended to steal items from a car when no one was there; then, after being caught by the owner, he formed a new objective: to threaten him with a knife so that he could get away. That is in contrast to People v. Bauer (1969) 1 Cal.3d 368, 378, relied on by defendant, where