Filed 8/27/13 P. v. Madison CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----

THE PEOPLE,                                                                                  C071371

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF120020)

         v.

JAHMAL ERIC MADISON,

                   Defendant and Appellant.



         Defendant Jahmal Eric Madison tangled with Carlitha Gordon outside a motel.
Other people attempted to intervene. An information charged defendant with one count
of assault by means of force likely to produce great bodily injury and three counts of
misdemeanor battery. (Pen. Code, §§ 245, subd. (a)(1), 242.)1 A jury found defendant
guilty on all counts. Sentenced to 11 years in state prison, defendant appeals, contending
the court erred in instructing the jury, sentencing error, and ineffective assistance of
counsel. We shall stay defendant’s sentence on count 3; in all other respects we shall
affirm the judgment.



1   All further statutory references are to the Penal Code unless otherwise designated.

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                 FACTUAL AND PROCEDURAL BACKGROUND
       Officers responded to a 911 call from a motel employee, Fred Gurr, who saw
defendant in an altercation with Gordon. After interviewing Gordon, officers arrested
defendant. An information charged defendant with one count of felony assault by means
of force likely to produce great bodily injury and three counts of misdemeanor battery.
The information also alleged defendant had been convicted of a prior serious or violent
felony and had served three prior prison terms. (§§ 667, subds. (c) & (e)(1), 667.5,
subd. (b).) Defendant entered a plea of not guilty.
       A jury trial followed. The following evidence was introduced at trial.
       In the waning days of 2011 Gurr was an employee at Silvey’s Motel. Silvey’s
Motel is a one-story motel with approximately 50 rooms. Gurr lived in the motel next
door to Scott Campos. Defendant was staying in another room.
       One afternoon, as he cleaned a motel room, Gurr heard yelling and screaming. He
went outside to “see what was going on.” Gurr saw defendant and Gordon involved in a
physical altercation. Defendant held Gordon “by the throat up against the wall and [was]
yelling at her, and it looked like he was getting ready to hit her.” Gordon was crying and
unable to fight back. Her face was injured and bloody.
       Gurr saw defendant swing at Gordon “one time.” However, Gurr did not know
“whether he hit her or not.” Gurr asked defendant and Gordon “to take the problem off
the property.” In response, defendant tried to hit Gurr. Gurr called 911.
       As Gurr called 911, defendant began to beat up Rebecca Wilson, who had
attempted to intervene. Gurr saw defendant hitting and kicking Wilson. Wilson fell and
defendant began kicking her in the face and ribs.
       During defendant’s attack on Wilson, Campos also attempted to intervene.
Defendant hit Campos, pushed him down, and kicked him.
       Officers responded to Gurr’s 911 call. When they arrived, an officer contacted
Wilson in the motel’s parking lot. A visibly upset Wilson had “visual redness and

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swelling on her cheekbone area right underneath her eyes.” Wilson stated defendant
caused the injuries. Gurr, Gordon, Wilson, and Campos identified defendant as their
assailant.
       An officer interviewed Gordon, who was “upset, quiet, [and] timid.” Gordon’s
face was swollen and bleeding from her nose to her cheekbone.
       Officers also interviewed Campos. Campos suffered injuries to his mouth and was
bleeding “significantly from his gums.” The jury saw photos of all three victims.
       The jury found defendant guilty on all four counts. Defendant admitted the
enhancement allegations.
       The court sentenced defendant to 11 years in prison: the upper term of four years
on count 1, doubled for the prior strike enhancement, plus an additional year for each of
three prior prison terms. The court also sentenced defendant to concurrent terms of
90 days for each of the three misdemeanor battery counts. Defendant filed a timely
notice of appeal.
                                      DISCUSSION
                              INSTRUCTIONAL ERROR
       Defendant argues the court failed to instruct on simple assault as a lesser included
offense. Therefore, his conviction on count 1 must be reversed.
Background
       The information charged defendant with assault by means of force likely to
produce great bodily injury in count 1 against “R.W.,” Rebecca Wilson. In count 3,
defendant was charged with battery against Wilson.
       During trial, the prosecution asked about lesser included offenses. Defense
counsel stated: “[I]t’s really not necessary, if the charging document is correct. Count 3
is what I am arguing is my defense, but it’s Count 3 not Count 1. . . . I suppose the lesser
for Count 1 could be a [section] 240, but it seems to me that the [section] 240 would be
completed, if a guilty [sic] of Count 3, which is the battery.”

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       The trial court asked the prosecution whether count 3 was an alternative to count 1
or if they were two different attacks. The prosecution stated it was the “same event” and
would “be deemed [a] lesser included offense.”
       The trial court reasoned: “Count 1, lesser included is, of course, [sections] 242
and 240, but the Court typically does not instruct on the [section] 240. The lesser
included, if it’s not supported by the evidence if a touching occurred, then there is no
[section] 240, 242.” Defense counsel agreed, stating that her “position on how the
evidence [was] going to play out, a completed assault, which would make it a battery
[and] wouldn’t need a lesser.”
       The court instructed with CALCRIM No. 875 on count 1 and CALCRIM No. 960
on the remaining counts. CALCRIM No. 875, as given to the jury, provides in part:
“The defendant is charged . . . with assault with force likely to produce great bodily
injury in violation of Penal Code section 245[, subdivision] (a)(1). [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1A. The defendant did
an act that by its nature would directly and probably result in the application of force to a
person, and [¶] 1B. The force used was likely to produce great bodily injury; [¶] 2. The
defendant did that act willfully; [¶] 3. When the defendant acted, he 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 the
defendant acted, he had the present ability to apply force likely to produce great bodily
injury.”
       CALCRIM No. 960, as given, provides in part: “The defendant is charged . . .
with battery in violation of Penal Code section 242. To prove that the defendant is guilty
of this crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully
touched Carlitha Gordon, Rebecca Wilson and Scott Campos in a harmful or offensive
manner.”



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       During closing argument, the prosecutor argued the facts supported defendant’s
conviction of assault in count 1 and the batteries charged in counts 2 through 4. Defense
counsel stated that justice would demand the jury find defendant guilty on counts 2
through 4, but that the force used by defendant was not “likely to cause a significant or
substantial physical injury” and that the jury should not convict on count 1.
Discussion
       A trial court has a duty, even in the absence of a request, to instruct on general
principles of law relevant to the issues raised by the evidence and necessary to the jury’s
understanding of the case. Included in this duty is an obligation to instruct on lesser
included offenses when the evidence raises a question as to whether the greater, charged
crime has been proven and there is substantial evidence that only a lesser included crime
was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) If the
trial court fails to instruct on a lesser included offense, we reverse only if, after
considering the entire record, we find a reasonable probability that the error affected the
outcome of the trial. (Id. at p. 165.)
       Defendant insists such evidence exists in the present case. Specifically, defendant
challenges the eyewitness testimony of Gurr, who stated he saw defendant hitting and
kicking Wilson as she lay on the ground. According to defendant, the layout of the motel
and the presence of parked cars obstructed Gurr’s vision. In addition, photographs of
Wilson’s injuries “do not appear to be as severe as one might expect based on Gurr’s
testimony.” Defendant contends reasonable jurors, hearing this evidence, could have
concluded Gurr’s testimony and Wilson’s injuries failed to prove beyond a reasonable
doubt that defendant struck her with force likely to produce great bodily harm.
       However, the existence of any evidence, “ ‘no matter how weak,’ ” will not justify
instructions on a lesser offense. (Breverman, supra, 19 Cal.4th at p. 162.) Instead, such
instructions are required only if the evidence that defendant is guilty only of the lesser
offense is “ ‘substantial enough to merit consideration’ ” by the jury. (Ibid.)

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       Here, Gurr testified he witnessed defendant hitting and kicking Wilson.
Defendant continued to kick the prone Wilson in the face and ribs after she fell to the
ground. This evidence supported the jury’s finding that defendant attacked Wilson with
force likely to cause great bodily injury. Notwithstanding defendant’s challenge to
Gurr’s credibility and interpretation of the photographs of Wilson’s wounds, we do not
find it reasonably probable the jury would have found defendant guilty of simple assault
had the lesser offense instruction been given. (People v. Rogers (2006) 39 Cal.4th 826,
867-868.)
                                 SENTENCING ERROR
       Defendant argues the trial court erroneously imposed sentences on both counts 1
and 3 in violation of section 654. The People concede the court erred in sentencing
defendant on both counts 1 and 3.
Background
       In count 1 defendant was charged with assault by means of force likely to produce
great bodily injury against Wilson. In count 3 defendant was charged with misdemeanor
battery against Wilson. When queried by the court as to whether count 3 was an
alternative to count 1 or if they were two different attacks, the prosecution responded
they were the “same event” and that it would be “deemed [a] lesser included offense.”
Discussion
       Section 654, subdivision (a) provides, in part, that an “act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The court cannot
impose such multiple punishments for offenses arising out of a course of conduct that
violates more than one statute but constitutes an indivisible transaction. (People v. Britt
(2004) 32 Cal.4th 944, 951-952.)



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           In the present case, the evidence established that counts 1 and 3 were all part of
one continuous course of conduct. Defendant attacked Wilson, committing an assault,
count 1, and a battery, count 3. The People conceded this in the trial court. Accordingly,
defendant’s sentence on count 3 must be stayed.
                        INEFFECTIVE ASSISTANCE OF COUNSEL
           Finally, defendant argues his sentence must be reversed because of the trial court’s
failure to conduct a hearing on defendant’s allegations regarding evidentiary issues at
trial and to appoint new counsel to bring a motion for a new trial. According to
defendant, he “provided a colorable claim of ineffective assistance during his sentencing
hearing,” which should have led the court to conduct a Marsden hearing.2
Background
           At trial, evidence of defendant’s attacks on Gordon, Wilson, and Campos was
presented by Gurr and the officer who responded to the 911 call. The victims did not
testify.
           The officer testified that Wilson stated defendant attacked her. Defense counsel
objected on grounds of hearsay. The prosecution argued the evidence was admissible
under the excited utterance exception to the hearsay rule. The court agreed and overruled
defense counsel’s hearsay objection. After the prosecution questioned the officer about
Gordon’s injuries and who had caused them, defense counsel again objected on hearsay
grounds. The prosecution retreated from this line of questioning.
           During sentencing, the court noted defendant had a concern he wanted to bring to
the court’s attention. Defense counsel explained defendant’s concern was “evidence that
was introduced for the trial in regards to witnesses who weren’t present who were the




2   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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victims of the offenses.” Defense counsel further explained that defendant’s concerns
arose from “his failure to understand the way exceptions to the hearsay rule work.”
       In response, the trial court stated that these evidentiary rulings were made in the
course of trial and could be challenged on appeal. The court also stated sometimes
victims did not testify at trial.
       Defendant responded: “Your honor, the case is not a murder case. A lawyer
studied this in the law library. [¶] My accusers, they weren’t even in court to testify. A
man came in who was an enemy of mine and made some statements. I don’t care what
he said, doesn’t matter. There’s no relevance to that. [¶] The people who were victims
never even showed up in court so I could get a speedy trial, sir. They never came one
time. I was not able to test them, and then I was found guilty.” The trial court asked
defendant to stop interrupting the sentencing hearing and imposed sentence.
Discussion
       Defendant argues the court failed to conduct a hearing on his allegations and
appoint new counsel to bring a motion for a new trial. He claims he provided “a
colorable claim of ineffective assistance during his sentencing hearing. In fact,
[defendant’s] claim was well founded because defense counsel failed to object to the
introduction of statements by the victims to Officer Bjerke as violating [defendant’s]
right to confront and cross-examine the witnesses against him.”
       To establish ineffective assistance of counsel, defendant must show counsel’s
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms, and the deficient performance prejudiced defendant.
(People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We accord trial counsel’s tactical
decisions substantial deference and do not second-guess counsel’s reasonable tactical
decisions. (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.)
       When, following trial, a defendant requests that the court appoint new counsel to
prepare a motion for a new trial on the grounds of ineffective assistance of counsel, the

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court must conduct a hearing to explore the request. (People v. Bolin (1998) 18 Cal.4th
297, 346.) If the defendant makes a colorable claim of ineffective assistance in
connection with matters that occurred outside the courtroom, the trial court has the
discretion to appoint new counsel to assist defendant in a new trial motion. (Ibid.)
       Here, defendant vehemently expressed his disagreement with the trial court’s
evidentiary rulings. Defendant did not request appointment of new counsel, nor did he
make a “colorable” claim of ineffective assistance. Defendant made no mention of a new
trial, nor did he express dissatisfaction with his current representation.
       However, on appeal, defendant argues defense counsel performed ineffectively in
failing to object to the officer’s testimony on the grounds of his right to confrontation.
While defendant expressed dissatisfaction with the lack of testimony by his victims, he
never requested new counsel. In addition, even if the court struck the officer’s testimony,
Gurr’s eyewitness testimony described the attacks and identified defendant as the
perpetrator. Defendant would not have received a more favorable result had the
testimony been excluded.
                                      DISPOSITION
       Defendant’s sentence on count 3 is stayed. The trial court is directed to prepare an
amended abstract of judgment and to send a certified copy thereof to the Department of
Corrections and Rehabilitation. In all other respects the judgment is affirmed.


                                                         RAYE                  , P. J.
We concur:


      BUTZ                   , J.


      DUARTE                 , J.




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