Filed 7/3/14 P. v. Kwolek CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065102
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. 11CM2787 &
                   v.                                                                11CM0373)

GILBERT ANTHONY KWOLEK,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Gillian Black, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert
Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted appellant Gilbert Anthony Kwolek of violating Penal Code
section 245, subdivision (a)(1) (assault with a deadly weapon, to wit, a vehicle)1 and, in a
subsequent court trial, the allegations that he had suffered a prior serious felony pursuant
to section 667, subdivision (a)(1), and pursuant to sections 1170.12, subdivisions (a) to
(d), and 667, subdivisions (b) to (i) were found to be true. The court granted a
substitution of counsel and relieved appellant’s appointed trial counsel. A new trial
motion was filed and heard, and denied by the court. At sentencing, the court granted
appellant’s Romero2 motion to strike his previous strike conviction. He was sentenced to
the middle term of three years in state prison plus the five-year enhancement under
section 667, subdivision (a)(1), for a total term of eight years. He was also sentenced on
a trailing violation of probation case, in which the court denied reinstatement of probation
and sentenced him to 180 days with credit for time served. Fees and fines were also
imposed.
       On appeal, appellant contends his trial counsel was ineffective, the evidence was
insufficient to support a conviction, and the prosecutor committed acts of prejudicial
misconduct. We find these contentions lack merit and affirm the conviction.
                                          FACTS
Prosecution Evidence
       On August 26, 2011, Rosemary Flores met her boyfriend, Manuel Estrada, outside
the county library in Hanford. Flores was on foot; Estrada was on his bike. Flores then
noticed appellant with whom she wanted to speak. Appellant called out to her by her
nickname, “‘Chocolate.’” Flores told Estrada to wait. She walked over to talk to
appellant. She confronted appellant and told him to stay away from her daughter’s house.
Estrada walked his bike to where Flores and appellant were standing. He told appellant

1      All further statutory references are to the Penal Code unless otherwise noted.
2      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.



                                             2.
to get in his truck and leave. At this time, Estrada and appellant were standing near the
front end of appellant’s white Suburban truck, which was facing south in one of the
parking spaces in the library parking lot. Appellant told Estrada, “‘I wouldn’t be standing
there if I were you’” and then got into his vehicle. Estrada turned around and walked his
bike toward Flores. As he did so he heard a truck’s engine revving behind him. When he
looked back, he saw the vehicle “coming at [him].” He then dropped his bike and
jumped out of the way. The truck did not hit Estrada, but it ran over his bike. Appellant
slammed the truck’s brakes either before or after he struck Estrada’s bike. Estrada started
yelling at appellant and went toward the driver’s side door of his vehicle. Appellant then
put his truck in reverse and fled the scene.
       Flores saw the incident involving appellant’s vehicle and Estrada. She heard a
loud noise from the vehicle coming toward Estrada. She saw Estrada jump out of the
way of the oncoming truck. She heard the truck brake and hit the bike. She saw the
truck stop after hitting the bike, back up, screech its tires and drive out of the parking lot.
       Hanford Police Officers Brian Scandura and Jason Gustin responded to the scene.
Scandura interviewed Flores. Gustin interviewed Estrada. There were tire marks from
both Estrada’s bike and appellant’s truck. The tire marks were consistent with Flores’s
statement about the incident. Estrada’s bike was in “perfect condition” before being
struck. The collision caused the rear tire to be out of line and it would not roll. Also, the
gear mechanism was damaged. Gustin observed the damage and noted that the bike was
inoperable.
       Gustin went to appellant’s parents’ residence, noticed a white Suburban parked in
the driveway and saw what appeared to be a small dent on the frame of the vehicle above
the front bumper. When he arrived, police officers were already knocking on the door.
The lights were off inside the residence even though it was dark outside. Finally,
appellant’s parents arrived and let the police inside the residence. Approximately five to



                                               3.
10 minutes later, an officer emerged from the residence with appellant. Prior to that,
officers had been at the house for at least an hour knocking on the door with no response.
       Gustin spoke with appellant at the police department after giving him his
Miranda3 rights. Appellant gave a statement in which he said that he saw Flores near the
county library, that she told him to stay away from her daughter’s house and he said,
“[t]hat’s fine.” He started to get into his vehicle to leave, but Estrada then approached
him and “got in his face.” Estrada told him to leave Flores alone and to leave the area.
He indicated that he complied by getting into his vehicle, but Estrada continued to keep
his car door open. He was finally able to shut the door and start the vehicle. When asked
about the tire marks in the parking lot, appellant stated that after he got into the vehicle he
may have driven toward Estrada and may have slammed on his brakes. He said he put
his vehicle in reverse and then left the parking lot and went to his parents’ house. When
he was asked why he did not open the door at his parents’ house when the police knocked
on it, he replied that he did not do so because he did not want to get arrested.
       An in-field show-up was conducted and both Estrada and Flores positively
identified appellant as the driver of the Suburban truck.
Defense Evidence
       Appellant testified in his own defense. He was previously convicted of possession
of marijuana for sale and of attempted voluntary manslaughter with enhancements for a
weapon and for great bodily injury.
       Appellant was driving a Suburban SUV. He had just finished speaking with
Flores’s nephew, Marcelino Sumaya, near the library. Flores waved appellant to come
toward her. They met on the sidewalk near the library. She said she was upset with him
and asked him not to visit Sumaya at the house because it was upsetting the kids. He
agreed not to do so. Shortly thereafter, a male (Estrada) rode up on a bike and told
3      Miranda v. Arizona (1966) 384 U.S. 436.



                                              4.
appellant to quit talking to his girlfriend. Flores told appellant that Estrada was very
jealous and volatile. The male told appellant to get away from Flores, and appellant felt
“very threatened.” At one point, the male said “You better fucking get in your car unless
[sic] I’m going to teach you a lesson.” Flores turned around and walked away. The male
followed appellant to his truck and then parked his bike in front of the truck. As
appellant tried to get in his truck, the male grabbed him and slugged appellant repeatedly
through the open driver’s door window. The male had one arm on appellant and one arm
on the steering wheel of appellant’s truck. Appellant backed out of the space and
attempted to put the vehicle into “drive,” but instead put it in “neutral,” which caused the
engine to rev. He then placed the vehicle into drive and it lunged forward. The male
pulled on the steering wheel and it placed appellant right back into the parking space
where he had just been. Appellant then slammed on the brakes and his vehicle stalled.
He restarted the vehicle, honked the horn and told the male that he should not be standing
there. The male then let go and backed away and appellant was able to close his truck
door at that time. He backed up and saw the male reach for an object in his back pocket
and toss it to Flores. He thought the object might have been a knife, but he did not know.
He backed out of the space and drove away. He denied leaving the parking lot at a fast
pace.
        In his interview with the police, appellant told the officer that the male had rushed
him and threatened him, grabbed his shirt and started punching him. He also said that the
male attempted to open his driver’s side door. He told the police that he did not answer
the door at his parents’ house because he wanted to first discuss with his parents what had
happened before talking to the police. He denied telling the police he did not answer the
door because he knew he was in trouble or was afraid he would be arrested. He denied
driving his vehicle toward the male. He had bruising from all of the blows he received
from the male, but never showed any of these to the police.



                                              5.
Rebuttal
       Gustin testified that appellant never told him that Estrada had ever punched him.
He never complained about any pain to his body nor did the officer notice any injuries to
appellant. Appellant did not say he was ever concerned for his safety and he never told
the officer he suspected Estrada had a weapon.
New Trial Motion
       Following his conviction, appellant made a motion to substitute newly retained
counsel, which was granted. His new counsel filed a motion for a new trial based on
alleged ineffective assistance of trial counsel. The motion included declarations from
appellant and from Marcelino Sumaya.
       Appellant’s declaration stated that his trial attorney, Christoper Martens, did not
spend any time with him or visit him in jail, did not give him a pen to write down notes
during the trial, that appellant informed Martens of a “direct, corroborating alibi witness”
named Marcelino Sumaya, whom Martens never contacted, and that the same was true of
a second “alibi witness,” Bradley Plueard, who was never contacted by Martens. Also,
during jury selection, appellant informed Martens that there were three prospective jurors
that he knew. Appellant requested that these individuals be questioned and probably
removed, but that Martens told appellant to “[s]hut up.” One of the jurors was removed
by the court and the other two ended up on the jury.
       Sumaya’s declaration indicated that he was a percipient witness to the incident in
question and that he had spoken with appellant about his knowledge of these events. He
said that he observed Estrada threaten to assault appellant. As appellant got into his
vehicle and attempted to close the door, Estrada reached into appellant’s truck and began
striking him. He saw Estrada reach into the truck and grab the steering wheel. At no
time did appellant’s vehicle strike Estrada’s bicycle.
       At the hearing on appellant’s motion for a new trial, appellant and Martens
testified. Martens testified that while he did not speak with appellant at the jail, he did

                                              6.
speak with him several times in connection with various court appearances preceding the
trial date. On the arraignment date, he spoke with appellant specifically about his version
of what happened and appellant told him his side of the story, which was essentially what
he testified to at trial. On a later date, appellant informed Martens that he had two alibi
witnesses who could testify that he was not present at the crime scene during the alleged
assault. Appellant told Martens that one of the alibi witnesses would say anything that
appellant told him to say. Martens then told appellant that it was not a good idea to put
on perjured testimony and that when people lie on the stand it usually comes out during
cross-examination. Appellant did not bring up the alibi witness idea again. Appellant
never provided Martens with the names of any percipient witnesses to the incident.
       Regarding the jury selection process, appellant expressed concern about a juror
that he knew. That juror was ultimately dismissed by the court. There was another juror
that appellant thought he might have recognized, but that juror did not respond
affirmatively to the judge’s question about whether he or she was acquainted with any of
the witnesses or appellant. Martens testified he had no arguments with appellant about
which jurors to keep and which to have excused.
       Appellant testified at the hearing. He said that Martens promised to visit him in
the jail, but never did so. He told Martens that Sumaya was a possible witness, but he did
not know whether Sumaya had seen anything or not. He never said that Sumaya was
willing to say anything or that Sumaya was willing to say that appellant was not at the
crime scene. During voir dire, Martens told appellant to “shut up.”
                                        DISCUSSION
I.     Ineffective Assistance of Counsel
       A.      Standard of Review
       The United States and California Constitutions guarantee the right to effective
assistance of counsel to one charged with a crime. This protects a defendant’s
fundamental right to a trial that is both fair in its conduct and reliable in its result.

                                                7.
(Strickland v. Washington (1984) 466 U.S. 668, 684-687 (Strickland); People v. Ledesma
(1987) 43 Cal.3d 171, 215.) The burden is on appellant to prove that counsel was
constitutionally ineffective. (Strickland, supra, at p. 696; People v. Babbitt (1988) 45
Cal.3d 660, 707.) Appellant must show two things: that counsel’s performance was
deficient and that his performance prejudiced the defense. (Strickland, supra, at p. 687.)
       Counsel’s performance is judged under an objective standard of reasonableness.
Prejudice is shown if counsel’s deficiencies establish a reasonable probability that but for
counsel’s errors the result would have been different. (Id. at pp. 687-688, 690, 694.) In
assessing whether counsel’s performance is deficient under prevailing professional
norms, the court indulges a strong presumption that the challenged action falls within the
range of reasonable professional behavior. (In re Jones (1996) 13 Cal.4th 552, 561.) In
order to conclude that counsel’s performance was constitutionally deficient, the record
must affirmatively disclose the lack of a rational tactical purpose for the challenged act or
omission. (People v. Ray (1996) 13 Cal.4th 313, 349 (Ray).) “[C]ourts should not
second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.”
(People v. Scott (1997) 15 Cal.4th 1188, 1212.)
       An appellate court’s review of counsel’s performance is a highly deferential one
and a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. (Strickland, supra, at p. 689; In re
Jones, supra, 13 Cal.4th at p. 561; People v. Ledesma, supra, 43 Cal.3d at p. 216.)4 As
appellant correctly points out in his opening brief, it is not enough to allege that the
attorney’s tactics were poor or that the case might have been handled more effectively;
appellant must affirmatively show that counsel’s omissions involved critical issues and


4       A reviewing court has the option of addressing the prejudice prong first if it is
easier to dispose of an ineffectiveness claim for lack of sufficient prejudice. (Strickland,
supra, 466 U.S. at p. 697; People v. Lewis (2001) 26 Cal.4th 334, 363-364.)



                                              8.
that those omissions cannot be explained by any knowledgeable choice of tactics.
(People v. Stratton (1988) 205 Cal.App.3d 87, 93-94.)
       B.     Failure to Investigate
       Appellant criticizes trial counsel’s performance on several grounds, including that
he failed to adequately communicate with him, did not conduct any scene investigation,
did not contact two potential witnesses, Marcelino Sumaya and Bradley Plueard, and did
not interview prosecution witnesses.
       Regarding communications between trial counsel and appellant, the record neither
shows that their communications were inadequate nor, if inadequate, how it prejudiced
the defense. While it is true that trial counsel never spoke with appellant at the jail,
counsel did speak with appellant on several occasions before trial, including discussing
the circumstances of the crime with which he was charged. The record shows that they
communicated during the trial proceedings. The record does not disclose that appellant
was ever denied the opportunity to communicate with his counsel before or during the
trial. Thus, appellant has failed to meet his burden of showing that trial counsel rendered
substandard legal assistance on the basis of inadequate communication. Moreover, the
record is barren of any showing that any alleged failure to adequately communicate with
appellant adversely affected the defense at trial. In other words, there is no evidence of
prejudice. Accordingly, this ground for asserting ineffective assistance of counsel fails.
       C.     Lack of Crime Scene Investigation
       Appellant criticizes trial counsel for not conducting any crime scene investigation
in that counsel did not take any photographs, did not prepare any diagrams, maps or
sketches, and did not try to locate surveillance cameras or percipient witnesses. The
record, however, does not affirmatively disclose that trial counsel did not investigate the
scene. Appellant simply assumes that he did not because he did not take any
photographs, prepare diagrams or locate any surveillance cameras. The record does not
disclose that there were any surveillance cameras in the area. More importantly, there

                                              9.
has been no showing that counsel’s performance was objectively deficient because he did
not take photographs, prepare diagrams or try to locate surveillance cameras. Appellant
has failed to carry his burden. It follows that appellant has also failed to show any
prejudice from these alleged failures. He has failed to explain how any particular
photograph, diagram or surveillance film would have assisted his defense. Nor has he
shown that counsel’s failure to interview the prosecution witnesses would have benefitted
the defense in some real way. Accordingly, this ground for alleging ineffective
assistance of counsel also fails.
       D.     Failure to Interview Potential Defense Witnesses
       Appellant’s primary criticism of his trial counsel’s performance is that he failed to
contact Sumaya and Plueard as potential defense witnesses. At the hearing on his new
trial motion, appellant personally testified and also submitted his own written declaration
and that of Sumaya. In denying his motion, the trial court specifically determined that
neither Sumaya nor appellant were credible. By implication, the trial court found the
testimony of appellant’s trial counsel, Martens, credible.
       Martens testified that, at arraignment, he and appellant had a discussion about the
events that led to his arrest. Appellant told Martens essentially what he testified to at
trial. That version included his admission that he was present at the scene when the
encounter with Estrada occurred. Appellant never deviated from that account. On a
subsequent date before trial, appellant told Martens that he had the name of an “alibi”
witness who would testify that appellant was not present at the crime scene when the
alleged crime occurred. When Martens asked him if this witness wouldn’t be lying,
appellant’s response was that he would testify to “whatever.”
       Appellant argues that Sumaya was not in fact an alibi witness but an eyewitness,
and would have corroborated appellant’s testimony and contradicted the testimony of the
prosecution witnesses. In his declaration submitted in support of his motion for a new
trial, appellant states that he handed his lawyer a handwritten letter on the day he was

                                             10.
arraigned, informing him that he had a “direct, corroborating alibi witness in this matter,
Mr. Marcelino Sumaya.” Thus, the record shows that appellant described Sumaya as an
alibi witness to Martens. Appellant, however, was not asserting alibi as a defense.
Appellant was asserting that Estrada assaulted him. An alibi witness would have
contradicted appellant’s own version of what happened. It would also have caused
Martens to suborn perjury, inasmuch as his own client told him repeatedly that he was at
the scene when these events occurred. Not only was it not ineffective assistance of
counsel for Martens not to have called Sumaya as a witness, it would have been unethical
for Martens to have put Sumaya on the stand believing that the testimony he was eliciting
was perjurious. (People v. Riel (2000) 22 Cal.4th 1153, 1217.) While counsel may
ethically present evidence that they suspect but do not personally know is false, they may
not do so if there is a firm, factual basis for believing the testimony to be false. (Id. at
p. 1217.)
       Here, there could be no doubt that Sumaya’s alibi testimony would be fabricated,
given that appellant told Martens he was present when these events occurred. Clearly,
Martens’s performance was not deficient and appellant was not denied effective
assistance of counsel based on Martens’s failure to call Sumaya as a witness. The same
is true regarding his failure to call Plueard as a witness. In his own declaration appellant
stated that he told Martens that Plueard, who was then incarcerated at the Kings County
Jail, was “able and willing to testify as a corroborating alibi witness on [his] behalf.”
Martens rightfully concluded that appellant wanted these witnesses to testify to a
concocted alibi defense. Martens properly refused to participate in a scheme to suborn
perjury.




                                              11.
       E.     Counsel’s Failure to Request Instruction Supporting Defense of
              Accident/Mistake
       Appellant complains that his trial counsel failed to request an instruction regarding
the defense of accident by requesting either CALCRIM No. 3404 (Accident/Mistake) or a
pinpoint instruction. Since a trial court does not have a sua sponte duty to instruct on an
accident defense (People v. Anderson (2011) 51 Cal.4th 989, 996-998), appellant argues
that his counsel’s failure to request an instruction on accident constituted ineffective
assistance of counsel, emphasizing that he testified he never drove the car toward Estrada
and it was never his intention to hit the bicycle.
       There must be evidence sufficient to warrant a particular jury instruction. (People
v. Salas (2006) 37 Cal.4th 967, 982-983.) The question is whether there was sufficient
evidence of accident or mistake to justify the giving of such an instruction in this case.
We find such evidence lacking in this record.
       Appellant did not testify that he accidentally or mistakenly assaulted Estrada with
the vehicle. On the contrary, he testified that he never drove his truck towards Estrada.
There was no evidence that the subject incident occurred as the result of appellant’s
accidental behavior or mistake. Viewing the evidence in the light most favorable to
appellant, the evidence does not support the giving of an instruction on the defense of
accident. Since the court has no duty to give an instruction that is not supported by
substantial evidence (People v. Bolden (2002) 29 Cal.4th 515, 558), trial counsel did not
provide ineffective assistance of counsel in failing to request an instruction on the
defense of accident.

       F.     Counsel’s Failure to Object to CALCRIM No. 372
              (Flight/Consciousness of Guilt)
       The trial court instructed the jury with CALCRIM No. 372 (Flight/Consciousness
of Guilt). Defense counsel did not object to the giving of this instruction. On appeal,
appellant argues that appellant’s act of driving away from the scene was not flight; he



                                             12.
“was simply trying to go home.” Accordingly, appellant argues that his attorney’s
representation was deficient in failing to object to the instruction.
       Appellant cites Ray, supra, 13 Cal.4th at page 345, for the proposition that the
flight instruction is proper where the evidence shows that the defendant departed the
crime scene under circumstances “‘suggesting’” that his movement was motivated by a
consciousness of guilt. Here, the testimony of Estrada and Flores provided sufficient
evidence to warrant the giving of the instruction. Estrada testified that after he was
nearly struck by appellant’s truck, appellant “fled the scene.” Flores’s testimony was
similar. She testified that after Estrada was nearly struck, appellant backed up his vehicle
rapidly, screeched his tires and “peeled off into the road.” This evidence meets the Ray
standard because it suggests that appellant fled the scene to avoid responsibility for what
occurred, that is, was motivated by a consciousness of guilt. Therefore, counsel was not
neglectful in failing to object to this instruction.
       G.      Failure to Impeach Prosecution Witnesses
       Appellant contends that trial counsel failed to impeach prosecution witnesses with
their prior inconsistent statements, their contradictory trial statements and prior
convictions. As to the latter, the jury was informed of the prior convictions by the
prosecutor, but appellant complains that his counsel did not mention them and did not use
them to attack the witnesses’ credibility. Without any citation to legal authority,
appellant criticizes his counsel’s cross-examination of prosecution witnesses primarily on
the basis that they were not specifically confronted with certain enumerated, alleged
inconsistencies and contradictions in prior statements or testimony.
       In order to prevail on an ineffective assistance of counsel claim, the record must
affirmatively show the lack of a rational, tactical purpose for the challenged act or
omission. (Ray, supra, 13 Cal.4th at p. 349.) The object of an ineffectiveness claim is
not to grade counsel’s performance. (Strickland, supra, 466 U.S. at p. 697; In re Cox
(2003) 30 Cal.4th 974, 1019.)

                                               13.
       Cross-examination of prosecution witnesses is inherently tactical and reflects the
exercise of discretion and judgment of the trial attorney. Experience shows that no two
competent trial attorneys will cross-examine a witness the same way. Depending on
style, tactics and preference, different attorneys may conduct cross-examination of
adverse witnesses differently by asking different questions in a different order and with
different emphasis. Some may choose to conduct lengthy cross-examination, while
others may opt for limited cross-examination. Similarly, no two trial attorneys will
attempt to impeach witnesses in the same manner. Simply because an attorney believes
that a witness has been inconsistent in an earlier statement does not mean that the
attorney’s performance is deficient in failing to attempt to impeach the witness with that
prior statement. Effective trial counsel are usually reluctant to engage in prolonged
cross-examination over matters that a jury might regard as relatively immaterial. And,
even if material, there may be tactical reasons for limiting one’s cross-examination to a
few selected points rather than spending additional time attempting to impeach the
witness on each and every purportedly prior inconsistent statement.
       Appellant’s argument on appeal ignores the wide discretion given to trial counsel
in conducting cross-examination of prosecution witnesses. It is inappropriate for a
reviewing court to engage, as appellant urges us to do, in second-guessing the questions
counsel asked those witnesses and whether additional questions should have been asked.
The record must affirmatively disclose the lack of a rational tactical purpose for the
challenged act or omission. (Ray, supra, 13 Cal.4th at p. 349.) “[C]ourts should not
second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.”
(People v. Scott, supra, 15 Cal.4th at p. 1212.)
       This record fails to disclose that counsel had no rational, tactical purpose in the
manner in which he questioned these witnesses, including his failure to ask the questions
that appellant now argues should have been asked. Accordingly, we find no ineffective
assistance of counsel on this ground.

                                             14.
       H.     Failure to Object to Prosecution’s Use of Appellant’s Prior Convictions
       Before appellant testified, the prosecutor asked the court for permission to
introduce a prior conviction for attempted voluntary manslaughter with great bodily
injury and use of a weapon that occurred in 1994. Trial counsel did not object to the use
of this conviction. Appellant now complains that he should have objected because the
offense was 17 years old at the time of trial and that there “was a substantial argument to
be made under Evidence Code section 352, that the probative value of the conviction was
outweighed by the danger of prejudice.”
       Appellant does not contend that this conviction does not qualify as a crime of
moral turpitude, because indeed it does. (People v. Coad (1986) 181 Cal.App.3d 1094,
1110.) In deciding whether to allow impeachment with this offense, the court exercised
its discretion under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301,
306-307.) Some of the factors the court is supposed to consider are whether the prior
conviction reflects on the witness’s honesty or veracity, whether it is near or remote in
time, whether it is similar to the conduct charged and what effect its admission would
have on the defendant’s decision to testify. (People v. Clark (2011) 52 Cal.4th 856, 931.)
       The attempted voluntary manslaughter conviction with great bodily injury and use
of a weapon is a crime of moral turpitude. This offense did not involve conduct similar
to that charged in the instant case. The record does not indicate that admission of
appellant’s prior attempted voluntary manslaughter conviction had any effect on his
decision to testify and indeed appellant did testify.
       Appellant’s primary argument is that the conviction was remote because it
occurred in 1994. But, as the People point out, appellant was sentenced to eight years
five months for that offense and thereafter committed several other offenses prior to the
assault in the instant case. Thus, if appellant’s trial counsel had objected to the use of this
conviction and the court had exercised its discretion under Evidence Code section 352,
this court would have to conclude that it was probable the trial court would have

                                             15.
excluded this conviction. On this record and for the reasons already noted, we cannot do
so. Appellant has not shown that if an objection had been made, the trial court would
have likely excluded the conviction. Therefore, the claim of ineffective assistance of
counsel on this ground fails.
       I.     Trial Counsel’s Reasonable Doubt Argument
       Appellant cites an excerpt from trial counsel’s closing argument as evidence that
he misstated the law on reasonable doubt. That excerpt is as follows:

              “‘Proof beyond a reasonable doubt is proof that leaves you with an
       abiding conviction that the charge is true. The evidence need not eliminate
       all possible doubt because everything in life is open to some possible or
       imaginary doubt.’

               “Now, there’s two ways to look at reasonable doubt. And one is the
       definition of what it is, and the other is the definition of what it is not.

               “Reasonable doubt or proof beyond a reasonable doubt is something
       that leaves you with an abiding conviction, something that you can be sure
       on it. [sic] You can hang your hat and say, you know what, this is what the
       facts are, and we know that this is what happened.

                “But what is not reasonable doubt, and that’s also defined and I think
       it’s a little bit more helpful than the words abiding conviction because
       that’s really hard for us too. It’s really for me as an attorney to explain to
       you what an abiding conviction is, but I can tell you what reasonable doubt
       isn’t and it’s doubt that is imaginary, and if you have doubt but it’s really
       something that really couldn’t happen, well then that’s proof beyond a
       reasonable doubt because everything in life, there’s always some possibility
       that’s not realistic. If there’s doubt that’s not realistic, then that’s then that
       doesn’t stop you from proof beyond a reasonable doubt.

              “But if the doubt is realistic, if it’s possible in your mind that that’s
       how it happened, if it’s possible that, how [appellant] told you what
       happened happened, then that’s not beyond a reasonable doubt.

               “And I think it all goes back to where you as jurors, you reject
       what’s unreasonable, you don’t believe what’s unreasonable, you don’t
       believe the unreasonable testimony. But if it’s reasonable then you take
       that into consideration and you determine what the weight and the value of
       the evidence is. And if it’s reasonable to believe that [appellant] didn’t do


                                              16.
       this, and it’s reasonable to believe that his version of what happened is true
       then you must find him not guilty.”
       Based on this argument, appellant contends that his trial attorney portrayed the
determination of guilt or innocence as simply a reasonableness contest between two
competing versions of events. We disagree. What counsel said was that if there were
two reasonable versions of an event and one of those versions was the defense version,
the jury had to accept the defense version as true and acquit him. This is in accordance
with the law. (CALCRIM Nos. 220 & 224.) Trial counsel did not misstate the
reasonable doubt standard.
       J.     Failure to Object to Inadmissible Evidence
       Appellant contends that his trial counsel prejudiced the defense by failing to object
to several items of inadmissible evidence. He acknowledges that it is his burden to
affirmatively show that the omissions of counsel involved a critical issue and that they
cannot be explained on the basis of any knowledegable choice of tactics. (People v.
Stratton, supra, 205 Cal.App.3d at pp. 93-94.) Nevertheless, he cites several examples of
his trial counsel’s failure to object to evidence and his cross-examination of prosecution
witnesses that he contends reinforced the prosecution’s case.
       Appellant cites as an example a portion of the direct examination of Gustin in
which he was asked whether appellant told him “he thought he was in trouble for what
had happened at the parking lot?” He contends this question was leading and compound,
and was particularly prejudicial because it reinforced the assumption that appellant’s
failure to open the door to the police and his statements to the police were attributable to
a consciousness of guilt related to the alleged assault. He contends that this particular
line of questioning left the jury with the impression that appellant admitted he knew he
was in trouble for what happened at the parking lot, when in fact his statement to the
police that he knew he was in trouble was not in response to a question about what
happened at the parking lot. In other words, appellant contends that the prosecutor



                                             17.
gratuitously added the language “for what had happened at the parking lot” to an earlier
question and that defense counsel should have objected to this.
       Immediately after the assault incident occurred, appellant left the scene and went
to his parents’ residence where he refused to answer the knock on the door by the police.
He told the police later that he knew he was in trouble. It was not an unreasonable
question to ask him whether he thought he was in trouble for what had happened at the
parking lot.
       Appellant’s next criticism is that trial counsel failed to object when Estrada
testified that appellant “‘fled the scene.’” As the People aptly point out, a reasonable
tactical reason that counsel may have decided not to object to Estrada’s testimony was to
avoid having the prosecutor elicit more details from the witness in order to explain the
characterization that appellant “‘fled the scene.’” Counsel could have determined that it
was less damaging to have Estrada describe appellant’s departure in those words than to
give a more detailed explanation of how he sped away, such as Flores’s description that
appellant backed up his vehicle rapidly, screeched his tires and “peeled off into the road.”
       Finally, appellant contends that defense counsel repeatedly phrased his questions
in such a way as to assume appellant’s guilt. In one instance he referred to appellant’s
truck by saying “‘I mean the truck that hit [Estrada’s] bike.’” In other questions he asked
about what witnesses saw or heard before the truck hit the bike. The defense position
was that appellant did not strike the bike, although the evidence was overwhelming that
he did. Regardless, the questions did not concede that appellant’s truck struck Estrada’s
bike; they asked Flores about what she observed, using her previous testimony as a point
of reference. The People also point out correctly that even if counsel had conceded that
appellant’s truck had hit Estrada’s bike, it was not an admission of guilt as to the charged
offense. There was no ineffective assistance of counsel on this ground.




                                            18.
       K.     Breach of Ethical Duties
       Appellant contends that his trial counsel adopted an adversarial position against
his former client at the hearing on the motion for a new trial. He argues that offering
testimony that he didn’t interview appellant’s witnesses because he believed them to be
alibi witnesses and that their testimony would be perjury constituted a breach of his
ethical duties to his client, including the duties of loyalty and confidentiality as well as a
violation of the attorney/client privilege. We disagree. It was appellant who brought the
motion for a new trial, contending that there was ineffective assistance of counsel that
prejudiced his case. As such, the testimony of his trial counsel was within the scope of
the matters placed into issue by appellant. There was no breach of the trial counsel’s
ethical duty or violation of the attorney/client privilege. (People v. Ledesma (2006) 39
Cal.4th 641, 691.)
       L.     Prejudice
       Even assuming, arguendo, that trial counsel’s performance was objectively
deficient in one or more of the grounds asserted, appellant has failed to show that he was
prejudiced thereby. The evidence against appellant was strong. The two eyewitnesses
offered damning evidence against him. The damage to the front of his vehicle and to the
bike supported the witnesses’ versions of what happened. Appellant fled from the scene.
He refused to come to the door when the police arrived. His statement to the police
differed significantly from his trial testimony. It was appellant’s burden to show how his
counsel’s substandard representation prejudiced the trial’s outcome. He did not carry that
burden.
II.    Insufficiency of Evidence
       A.     Standard of Review
       When a conviction is challenged on the ground that the evidence was insufficient
to support the verdict, the reviewing court applies the substantial evidence test. The
appellate court reviews the entire record in the light most favorable to the judgment to

                                              19.
determine whether there is substantial evidence from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. By substantial
evidence it is meant evidence that is reasonable, credible and of solid value. (People v.
Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
The reviewing court need not be convinced that the evidence proves the allegations
beyond a reasonable doubt; rather, it must determine whether any rational trier of fact
could be so persuaded. (People v. Johnson, supra, at p. 576.) The judgment may not be
reversed unless it is clear that under no hypothesis whatever is there sufficient, substantial
evidence to support it. (People v. Haynes (1967) 253 Cal.App.2d 1060, 1062; People v.
Hicks (1982) 128 Cal.App.3d 423, 429.) On the other hand, where the record establishes
either a physical impossibility that statements testified to by a witness are untrue or that
their falsity must be apparent without resorting to inferences or deductions, the reviewing
court may reject that testimony even though it was believed by the trier of fact. (People
v. Barnes (1986) 42 Cal.3d 284, 306; People v. Friend (2009) 47 Cal.4th 1, 41.)
       B.     There Was Sufficient Evidence to Support the Conviction
       Appellant was convicted of assault with a deadly weapon. The elements of this
offense are: (1) appellant committed an act with a deadly weapon other than a firearm;
(2) appellant acted willfully; (3) when he acted, appellant was aware of facts that would
lead a reasonable person to realize that his act by its nature would directly and probably
result in the application of force to someone; and (4) when appellant acted, he had the
present ability to apply force with a deadly weapon other than a firearm to a person.
(CALCRIM No. 875.) Appellant contends that the evidence supporting the first element
is inherently improbable and therefore does not satisfy the substantial evidence test. We
disagree.
       Appellant argues that from Estrada’s testimony, the alleged assault is a “[p]hysical
[i]mpossibility” and that Estrada’s testimony is patently false. Separate and apart from
Estrada’s testimony was the testimony of Flores. The testimony of a single witness can

                                             20.
prove any fact. (CALCRIM No. 301.) Flores testified that after the three of them
finished speaking, she turned around, heard a loud noise like a vehicle coming close, and
when she turned around said “‘Oh, my God,’ that’s what—he’s going to hit him—that’s
what I thought to myself. [¶] My boyfriend had his hands on the bike and he jumped
away from the bike and the truck [driven by appellant] hit the bike and knocked it down.”
Later she testified that Estrada jumped away from the bike and the truck hit the bike. “He
made it just in time to get away from the truck—the bike.” This testimony was sufficient
to support the first element of the offense.
       Appellant further contends that the evidence was insufficient to prove the element
of intent. We disagree.
       Appellant asserts that the only evidence in support of intent was Estrada’s
statement that just before he got into his vehicle, appellant looked at him and said “‘I
wouldn’t be standing there if I were you.’” That statement coupled with the eyewitness
accounts of Estrada and Flores provided sufficient evidence that appellant drove his
vehicle at Estrada with intent. Appellant’s testimony to the contrary is not binding on
this court. The jury was free to weigh the evidence and either find that appellant’s
conduct was willful or not. By its verdict, it found that appellant acted willfully and the
evidence supports that finding.
III.   Prosecutorial Misconduct
       Appellant contends that the prosecutor committed multiple acts of misconduct
during the trial. We conclude that no misconduct occurred.
       A.     Misstatement of Reasonable Doubt
       During rebuttal argument, the prosecutor stated:

               “The next point that the defense makes is reasonable doubt. The
       definition of reasonable doubt, just listen to the words ‘If you have doubt it
       must be reasonable.’ If you have doubt about [appellant’s] guilt it must be
       a reasonable doubt in light of all the evidence.”



                                               21.
Citing People v. Hill (1998) 17 Cal.4th 800, 831 (overruled on another ground in Price v.
Jenkins (2001) 25 Cal.4th 1046, 1069, fn. 13), appellant contends that the prosecutor’s
statement shifted the burden of proof from the prosecution to the defense. In Hill, the
prosecutor argued:

       “‘[I]t must be reasonable. It’s not all possible doubt. Actually, very
       simply, it means, you know, you have to have a reason for this doubt.
       There has to be some evidence on which to base a doubt.’” (Ibid.)
The defense objected and the trial court overruled the objection. The prosecutor then
continued:

       “‘There must be some evidence from which there is a reason for a doubt.
       You can’t say, well, one of the attorneys said so.’” (Ibid.)
While acknowledging that it was a “close” call, the court concluded that the prosecutor
committed misconduct by misstating the law because taken in context the comments were
reasonably likely to be understood by the jury to mean the defendant had the burden of
producing evidence to demonstrate a reasonable doubt as to his guilt. (Id. at p. 832.)
       In the instant case, the prosecutor did not misstate the law by arguing directly or
indirectly that appellant had the burden of producing evidence to demonstrate reasonable
doubt of his guilt. She stated that any doubt must be reasonable and that any doubt about
appellant’s guilt must be reasonable in light of all of the evidence. The jury instruction
specifically advised the jury that in deciding whether the People proved their case beyond
a reasonable doubt, “[Y]ou must impartially compare and consider all the evidence that
was received throughout the entire trial. Unless the evidence proves [appellant] guilty
beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.” (CALCRIM No. 220.) The prosecutor’s comments did not conflict with the
reasonable doubt instruction or ask the jury to shift the burden to appellant.




                                             22.
       B.     Cross-examination of Appellant Regarding Veracity of Other Witnesses
       Appellant complains that the prosecutor repeatedly asked appellant whether other
witnesses were lying. He contends this constituted misconduct. She asked him whether
Flores, Estrada and Gustin were lying.
       Both parties acknowledge that case law presents differing views on whether a
prosecutor’s “were they lying” questions are reversible error. They must be evaluated in
context. They are not always admissible or always inadmissible. (People v. Chatman (2006)
38 Cal.4th 344, 380-384 (Chatman).) “‘[W]ere they lying’” questions are impermissible
when they are argumentative or designed to elicit speculative or irrelevant testimony, but are
permissible if the witness has personal knowledge that allows him to provide competent
testimony “that may legitimately assist the trier of fact in resolving credibility questions.”
(Id. at p. 384.) Thus, “[a] defendant who is a percipient witness to the events at issue has
personal knowledge whether other witnesses who describe those events are testifying
truthfully and accurately.” (Id. at p. 382.) And one who is a “percipient witness to the
events at issue” or “knows the other witnesses well” may be able to provide insight into
whether the other witnesses are “intentionally lying or are merely mistaken.” (Ibid.)
However, when a prosecutor uses “were they lying” questions to berate a defendant and to
force him to call officers liars in an attempt to inflame the passions of the jury, misconduct
occurs. (People v. Zambrano (2004) 124 Cal.App.4th 228, 242.)
       Appellant had personal knowledge of the incident at issue. His trial testimony
directly conflicted with significant portions of the testimony of the prosecution witnesses.
Under the Chatman standard, the prosecutor did not commit misconduct in asking “were
they lying” questions of appellant. Parties are accorded wide latitude in conducting
cross-examination. (Chatman, supra, 38 Cal.4th at p. 382.) The cross-examination of
appellant concerning the differences between his recollection of events and that of the
other witnesses was legitimate inquiry and could properly assist the trier of fact in



                                             23.
ascertaining whom to believe. (Id. at p. 383.) These questions did not constitute
prosecutorial misconduct.
       C.     Doyle5 Error
       In Doyle, the United States Supreme Court held that the due process clause of the
Fourteenth Amendment is violated when the prosecutor introduces evidence of a
defendant’s silence at the time of arrest and after receiving Miranda warnings. (Doyle,
supra, 426 U.S. at p. 619.) Such is improper impeachment because it is using his silence
to impeach a defendant while having previously assured him that his silence would not be
used against him. (Wainwright v. Greenfield (1986) 474 U.S. 284, 291.) Doyle error is
established when the prosecution makes use of a defendant’s postarrest silence for
impeachment purposes and the trial court permits that use. (People v. Evans (1994) 25
Cal.App.4th 358, 368.)
       Here, Gustin spoke with appellant at the Hanford Police Department after advising
him of his Miranda rights. Appellant stated that he understood his rights. He spoke with
Gustin for about 30 minutes. Toward the end of their conversation, appellant asked for
counsel and the interview concluded.
       During the prosecutor’s cross-examination of appellant, she asked if appellant
mentioned to the officer any bruising that he received at the hands of Estrada, whether
appellant told the officer that he was “wailed” on over 20 times by Estrada, whether he
ever showed the officer any of his injuries and whether he told the officer that Estrada
reached from his pocket and threw something to Flores that he thought was a weapon.
During her closing argument, the prosecutor stated:

              “The other problem with [appellant’s] story is he talks about the fact
       that he was physically assaulted by Mr. Estrada. He was wailed 20 times
       over with a closed fist. Never do we ever hear this from [appellant] until
       the day of trial. He had a 30 minute interview with an officer from

5      Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).



                                            24.
       [Hanford Police Department]. Never did he mention that he was wailed.
       Never did he say he was in pain. Never did he lift up his sleeve to show the
       bruises he claimed he had. Never [did] he tell the officer, ‘My life was in
       danger. I believe my life was in danger.’ That, in fact, ‘I’m pretty sure the
       guy had a knife or a gun that he threw away as I was leaving.’ Why not?
       Why didn’t he tell the officer? Because it’s a fabrication for jury trial, a lie
       made up to tell you.”
       Appellant argues that the above stated questions and argument constitute Doyle
error because they repeatedly reference appellant’s postarrest silence. We disagree. The
questions appellant was asked and the arguments of counsel pertained to the 30-minute
interview, not to his postinterview silence. He was given his Miranda rights and claimed
he understood them before the 30-minute interview occurred. The prosecutor made no
mention of the postinterview time period. Instead, the questions and argument related to
the interview in which appellant freely answered questions and supplied information to
the officer. There was no Doyle error because none of the prosecutor’s questions or
comments in argument was directed to the time period after the interview ended.
       D.     Witness Vouching
       During the prosecutor’s direct examination of Officer Scandura, who was the first
officer to respond, he was asked about skid marks. The officer affirmed that he noticed
skid marks, which Flores pointed out to him. The prosecutor then asked whether the skid
marks seemed consistent with the story that Flores was telling him, to which the witness
answered, “Yes.” When questioning Gustin, the prosecutor asked if there was any
Suburban vehicle damage that was consistent with the witnesses’ statements and what
that damage was. Appellant contends that in both instances, the prosecutor was
improperly vouching for the credibility of a witness. We disagree.
       A prosecutor may not vouch for the credibility of witnesses or otherwise bolster
their veracity by referring to evidence outside of the record. However, as long as the
prosecutor’s assurances regarding the honesty or reliability of the witness are based on
the facts of the record and the inference is reasonably drawn therefrom rather any


                                             25.
purported knowledge or belief, the comments cannot be characterized as improper
vouching. (People v. Ward (2005) 36 Cal.4th 186, 215.)
       In neither example cited by appellant did the prosecutor improperly vouch for the
credibility of a witness. Regarding Scandura’s questioning of Flores, it was not improper
to ask whether skid marks Flores identified for the officer were consistent or inconsistent
with the account of the events that she conveyed. The fact that the skid marks were
consistent with the account she relayed did not establish what vehicle left those skid
marks or whether a crime had been committed. Nor did the prosecutor’s questions refer
to evidence outside of the record. The question merely asked whether Flores’s
description of how this incident occurred was consistent with the location of the skid
marks the officer observed. The same is also true of the prosecutor’s examination of
Gustin. Gustin’s testimony that there was a small dent to the front of appellant’s vehicle
that was consistent with the area in which Estrada said his bike was struck did not in and
of itself establish Estrada as a truthful witness. The questions did not refer to evidence
outside of the record. Instead, the questions provided further clarity as to whether the
witnesses’ statements as to the damage to the front of the Suburban was consistent with
the witnesses’ description of the event. There was nothing improper about this line of
questioning and it did not violate the rule against vouching for a witness’s credibility.
IV.    Conclusion
       We find no merit to appellant’s contentions of ineffective assistance of counsel,
insufficiency of the evidence and prosecutorial misconduct. Further, we find that
appellant has failed to establish that any of the alleged errors were prejudicial,
individually or cumulatively.




                                             26.
                                        DISPOSITION
      The judgment is affirmed.


                                                               _____________________
                                                                       Kane, Acting P.J.
WE CONCUR:


 _____________________
Peña, J.


 _____________________
Sarkisian, J.⃰




⃰       Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



                                           27.
