Filed 3/27/15 P. v. Nazario CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049424

         v.                                                            (Super. Ct. No. 13WF1136)

ANDREW NAZARIO,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Christopher Love, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for
Plaintiff and Respondent.
                                          *                  *                  *
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              A jury convicted defendant, Andrew Nazario, of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)) and misdemeanor false representation to a police
officer (Pen. Code, § 148.9, subd. (a)). The court sentenced her to three years in state
prison.
              Defendant argues the court violated her right to confrontation by not
allowing her to cross-examine the victim about a prior misdemeanor conviction for
soliciting prostitution and that her counsel was ineffective, both as to this issue and
because he failed to request a jury instruction for brandishing a weapon.
              We disagree and affirm.
                       FACTS AND PROCEDURAL HISTORY
              One evening in April 2013 Samuel Garcia was driving through Stanton.
Although he was aware prostitutes used that area, he denied knowing transvestite
prostitutes frequented it or that he was looking for a prostitute. As he drove he saw a
prostitute, who was later identified as defendant, waving at him. Even though defendant
looked female, Garcia later suspected she might be a man.
              After Garcia arranged to have intercourse with defendant for $80, defendant
got into Garcia’s car and they drove to a motel where defendant had a room. When
Garcia got to the room it was messy and dark, causing him to feel uneasy. He wanted to
go into the restroom so he could investigate defendant’s gender. When he opened the
door he saw a man sitting on the toilet. Garcia left the room without engaging in any
sexual activities.
              Defendant followed him, asking him to stay, but Garcia declined. When
she caught up with Garcia, she “pok[ed]” him on his back but Garcia kept walking.
Defendant kept poking Garcia’s back and then reached for his back pocket where he kept


          1
        Although defendant is a biological male she identifies as a female and we use
feminine pronouns when referring to her.

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his wallet. Garcia put his hand over his pocket. When his pocket ripped, he turned to
push defendant away.
             Defendant punched Garcia in the chest, twice. The second time the pain
was “very sharp.” He did not see anything in defendant’s hand but when he kicked her
and she fell down, something that sounded metallic dropped. Defendant ran to his car
and drove away. He noticed he was bleeding and went to the hospital. He had a stab
wound requiring 18 stitches that left him with a three-and-a-half-inch scar. He did not
call 911 because he did not want the police involved. Someone at the hospital called the
police.
             Deputy Dennis Gabrielli interviewed Garcia in the hospital. In explaining
the incident, Garcia did not mention defendant was a man.
             Investigator Mike Starnes also interviewed Garcia. Garcia did not tell
Starnes defendant was a male until Starnes asked that specific question. Garcia denied he
had discussed having sex with defendant or a price.
             Garcia told Starnes he saw defendant holding a two-to-three-inch long “T-
bone” knife, describing it as the type a person can “put between [her] knuckles.” When
he saw the knife he tried to get out of the way. Defendant punched him in the face.
Garcia never told Starnes defendant had pushed or poked at him as he descended the
stairs.
             Starnes also interviewed defendant. When Garcia stopped for defendant
she did not reveal she was a man because it was clear based on her features. Garcia
agreed to pay her $80 and they returned to defendant’s motel room, where they had anal
intercourse. She had not asked for payment beforehand and Garcia left without paying.
Defendant ran after Garcia to get the money owed to her, grabbing on to his pants pocket
where she saw his wallet. Defendant told Starnes she had taken her knife from her belt
and “held it to [Garcia] in a threatening manner,” demanding payment. Garcia was
injured. She said she did not know how the knife had opened.

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               A few days after the incident another deputy searched defendant’s motel
room. Defendant identified herself with a different name and birth date. She did so
because she was afraid.
               Defendant testified she considers herself to be, and for three years had been
living exclusively as, a female. She had been a prostitute for one year, working in a
“known” transvestite prostitution area. She had only male clients and none had ever been
surprised she was a biological male.
               She and Garcia drove to her motel together. He told her to go to her room
and followed her a couple of minutes later. No one else was in the room. The bathroom
door was open. They had anal sex and she went into the bathroom. Although she
normally asked for payment in advance, she had not done so because she was desperate
for money.
               When she came out of the bathroom, Garcia was leaving. He did not
answer when she asked for payment. She did not push or poke Garcia but ran after him,
grabbing on to his pocket to slow him. He yanked away, causing her to stumble and lose
her balance.
               Defendant normally carried a three-inch “flip-blade” knife on her belt. It
had a retractable blade that came out when a button on the side of the handle was pushed.
When she stumbled, she picked up her knife that had fallen to the ground. Garcia turned
around, grasping her by the arms. Still holding the knife, she pushed Garcia away and he
let go. She then saw his shirt was cut and noticed for the first time the knife blade
extended.
               She did not pull out the knife or in any way stab at or punch Garcia. She
did not intend to cut him. The stabbing was an accident. She acknowledged she had told
Starnes she had pulled out the knife to scare Garcia but admitted that was not true.
Starnes had suggested that she had done so and she agreed so she would not get into
trouble.

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              When Garcia left, defendant went to her room. She cut her hair and dressed
as a man. When she was stopped by the police a few days later, she gave a false name
out of fear of being arrested.
              Additional facts are set out in the discussion.
                                      DISCUSSION
1. Exclusion of Garcia’s Prior Conviction for Soliciting Prostitution
              a. Defendant’s Request to Admit Conviction and Court’s Denial
              In 2009 Garcia was convicted of misdemeanor solicitation of prostitution as
the “john.” (Pen. Code, § 647, subd. (b).) Before trial defendant’s lawyer sought to have
that conviction admitted into evidence to impeach Garcia. The parties agreed Garcia’s
prior felony conviction for counterfeiting checks (Pen. Code, § 470, subd. (d)) was
admissible based on moral turpitude. But as to the solicitation conviction, the court
stated, “Those are misdemeanors. I am not thinking that those would be [admissible].”
Both counsel agreed.
              Later, the prosecutor asked the court to revisit the question, stating that the
solicitation charge might not be admissible as to a crime of moral turpitude but it could
be relevant as to Garcia’s explanation about what happened. Defense counsel believed it
could be used to impeach Garcia, depending on his testimony. He agreed to make an
offer of proof at that time.
              After Garcia testified, defendant’s lawyer argued Garcia had “portrayed
himself as being this naive person that naively entered a dark[]room” and took certain
actions. Garcia had presented an inaccurate picture of himself. Further, when asked why
he did not call the police, Garcia explained he was not worried about prostitution. That
was misleading and defendant should be able to cross-examine him about his prior arrest.
The real reason he did not want the police called was so he would not get arrested again.
              The court excluded the prior conviction. It did not agree Garcia had
depicted himself as naïve, just very casual about soliciting a prostitute. Likewise,

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Garcia’s failure to call the police did not show he was naïve. The court did not believe
the jury had a false impression of Garcia. Nor did it believe the conviction was relevant
and even if it was “in a technical legal sense relevant,” Evidence Code section 352 barred
admission. The court stated it had “to be very careful about just cavalierly letting in
someone’s prior conviction for a misdemeanor.”
              b. Defendant’s Sixth Amendment Right of Confrontation
              Defendant argues the court’s exclusion of Garcia’s solicitation conviction
violated his Sixth Amendment right to confront and cross-examine Garcia. We disagree.
              The confrontation clause only “‘guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’ [Citation.]” (Delaware v. Van Arsdall (1986)
475 U.S. 673, 679.) Therefore, the trial court has broad discretion “to impose reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” (Ibid.)
              While a defendant has the right to cross-examine about a prior conviction
(Davis v. Alaska (1974) 415 U.S. 308, 316), he does not have the right to do so with
every conviction. As defendant acknowledges, the court has the discretion under
Evidence Code section 352 to exclude use of even felony convictions of crimes of moral
turpitude. (People v. Clair (1992) 2 Cal.4th 629, 654.) The court’s ruling here certainly
did not exceed the “‘bounds of reason.’” (Id. at p. 655.)
              Defendant was afforded the opportunity to cross-examine Garcia
extensively and vigorously did so. This included questions about his contradictory
statements to investigators, his failure to explain to the police defendant was a male, and
his statement defendant punched him in the face as opposed to the chest. Defense
counsel also focused on Garcia’s statements he had not discussed having sex or the price.
Further, although Garcia told Starnes he had seen the knife, at trial he admitted he had not

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seen it. Finally, defense counsel cross-examined Garcia about his felony counterfeit
check conviction.
              In support of her argument the misdemeanor solicitation conviction should
have been admitted defendant relies on several facts. She highlights Garcia’s
inconsistent testimony, especially what she asserts is Garcia’s claimed naiveté about
defendant’s gender. She further highlights contradictions between his testimony and
statements to police about the scuffle with defendant and whether or not he saw the knife.
              Defendant also relies on the fact the jury acquitted her of attempted second
degree robbery and a great bodily injury enhancement. She points to the jury’s questions
about the definitions of willfully and directly, both relating to the assault with a deadly
weapon jury instruction. Defendant concludes the jury had reasonable doubts about that
charge, claiming that had the solicitation conviction been admitted, it would have called
into question Garcia’s testimony defendant stabbed him. Defendant also asserts that
testimony would have been undermined by the solicitation conviction because it would
have shown Garcia “was more sophisticated that he pretended to be.”
              These arguments are unavailing. The very fact of Garcia’s contradictory
testimony casts doubt on his credibility. Further, Garcia’s felony conviction for check
counterfeiting, which was admitted, is much stronger evidence going to his credibility
than the misdemeanor solicitation conviction. Moreover, there is little connection
between the solicitation conviction and Garcia’s explanation about the stabbing, thus
supporting the court’s exclusion on the basis of Evidence Code section 352. We see no
abuse of discretion.
              c. Misdemeanor Conviction and Moral Turpitude
              Defendant asserts the court believed it did not have the authority to admit
the prior conviction because it was not a crime of moral turpitude or because it was a
misdemeanor or both. Thus, he continues, the court did not abuse its discretion; it did not
exercise its discretion at all, thereby committing a legal error because soliciting

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prostitution is a crime of moral turpitude, and a misdemeanor conviction of a crime of
                                 2
moral turpitude is admissible. Although the court initially seemed to rely on one or both
of these grounds, neither was the basis of the actual ruling.
               Rather, exercising its discretion, the court found the conviction was not
relevant and even if it were it was barred by Evidence Code section 352. It did not agree
Garcia had presented a false picture of himself, i.e., that he was naïve about prostitution.
And it specifically ruled the court had to be careful about “cavalierly” admitting a
misdemeanor conviction, thereby implying it understood misdemeanors could be used for
impeachment. Thus, there was no error.
2. Ineffective Assistance of Counsel
               a. Introduction
               To prevail on an ineffective assistance of counsel claim, a defendant must
show that, viewed objectively, counsel’s performance fell below prevailing professional
standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
To prove prejudice, defendant must demonstrate there is a “‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “‘“‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’
[Citations.]” [Citations.]’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
“‘[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’
[Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also In re Alvernaz (1992) 2
Cal.4th 924, 945 [“‘If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed’”].)

       2
           The Attorney General disputes these claims but we need not decide this issue.

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              b. Prior Conviction For Solicitation
              Defendant argues his trial counsel was ineffective because he did not know
and did not tell the court the soliciting conviction was a crime of moral turpitude.
Without deciding the adequacy of counsel’s performance, the alleged error did not result
in a miscarriage of justice such that it is reasonably probable there would have been a
more favorable outcome for defendant but for the alleged error. The court did not
exclude the evidence because it was not a crime of moral turpitude. Rather, it found the
conviction was not relevant and even if there was some relevance, it was outweighed by
prejudice. (Evid. Code, § 352.) Thus, it was inconsequential that counsel did not inform
the court he believed the soliciting conviction was a crime of moral turpitude.
              c. Jury Instruction for Lesser Related Offense of Brandishing
              Defendant also argues counsel was ineffective because he did not request a
jury instruction on brandishing a knife, a lesser related offense of assault with a deadly
weapon. We are not persuaded.
              A defendant is guilty of misdemeanor brandishing when, “except in self-
defense, in the presence of any other person, [he] draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel.”
(Pen. Code, § 417.)
              Defendant asserts that in closing argument her lawyer argued she had
committed brandishing and not assault, when he stated, “Assault with a deadly weapon
requires an act with a knife that, by its nature, would directly and probably result in the
application of force. And this is an important issue, because what – you know, we’re
talking about what happens with the knife. Holding a knife out, just holding a knife,
what we sometimes call brandishing, is not an assault. You stab, you slash, you do some
action with the knife, that becomes an assault. Just simply holding the knife is not an
assault.”

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              Shortly thereafter counsel argued, “So what do we have for reasonable
doubt? At worst, he displayed a knife. He didn’t swing it. He didn’t stab. He didn’t
slash. And you heard nothing from Mr. Garcia that says otherwise.”
              But in between those statements, counsel stated, “Again, [defendant] is not
guilty of [assault with a deadly weapon] . . . if he acted without the intent. So if that cut
happened by accident, and he didn’t intentionally swing it, poke it, slash it at Mr. Garcia,
then he is not guilty of [assault with a deadly weapon].”
              And after the second portion of the argument on which defendant relies, her
lawyer stated, “It doesn’t make sense that he is now going to pull out a knife and start
slashing him up. [¶] He didn’t open up the blade portion before the struggle. The knife
opened up accidentally during the struggle. And that’s what really makes sense in this
scenario. [¶] And he accidentally cut him when he attempted to separate himself.” The
argument emphasized and focused on the accidental nature of the stabbing.
              Likewise, in discussions about jury instructions, defendant’s attorney
sought an accident instruction (CALCRIM No. 3404). In arguing for its inclusion, he
cited to defendant’s testimony that she was not displaying or slashing with the knife.
“[Defendant] is not swinging it or doing it in a manner that would constitute an assault,
and there’s a struggle over the knife and [Garcia] is accidentally cut.” So “[i]f the jury
has found him guilty of attempted robbery . . . they could find accident as to the [great
bodily injury] and not find him guilty of [great bodily injury]. [¶] And I think as far as
the assault with a deadly weapon goes, I think there’s at least enough evidence for the
jury to render a decision of whether he is simply displaying the knife or doing something
that would constitute assault . . . . The jury is going to have to argue whether or not that’s
an assault or that, again, is accident.”
              Based on defendant’s testimony, closing argument, and discussions about
jury instructions we can think of at least one good reason why counsel did not request a
brandishing instruction: it was not consistent with his theory of the case, that defendant

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accidentally stabbed Garcia. A brandishing instruction is based on the premise that she
did the opposite.
              “‘[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. Weaver, supra, 26 Cal.4th at pp. 925-926.)
              Because we have no record of trial counsel’s reasons for not requesting the
instruction, and because there is a reasonable explanation of why counsel did not, we
reject the ineffective assistance of counsel claim.
                                      DISPOSITION
              The judgment is affirmed.



                                                   THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




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