Opinion Bank # O-243 (Re: FORECITE National™  295.3.2.7 [Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel’s Failure To Request Jury Instructions].)

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,

                                Plaintiff and Respondent,                   A076812

v.                                                                                      (San Mateo County Super.
                                                                                         Ct. No. 38832)
GEOVANI FRANCISCO OLANO,

                                Defendant and Appellant.
_____________________________________/

    Geovani Francisco Olano (Olano) was convicted by a jury of attempted murder, assault with a firearm and unlawful discharge of a firearm. The jury also found true enhancements for personally using a firearm and inflicting great bodily injury. Olano was sentenced to an aggregate term of 13 years in state prison.

    On appeal, Olano contends the trial court committed reversible error by (1) failing to sua sponte instruct the jury on the concept of third party culpability and the lesser related offense of being an accessory after the fact, and (2) failing either to sanitize evidence of Olano's prior assault conviction or to give a limiting instruction. Olano further contends the judgment must be reversed because of the ineffective assistance of his trial counsel. Alternatively, Olano asks us to vacate the judgment with directions to the trial court to permit Olano’s counsel to investigate his claim of jury misconduct.

   B.    The Prior Assault Conviction

    Before trial, the trial court ruled that evidence of Olano's prior conviction for assault with a deadly weapon was not admissible under Evidence Code section 1101 to prove identity or intent, but that it was admissible to impeach Olano if he took the stand. At trial, Olano's counsel elicited evidence from Olano's parole officer that Olano had a prior assault conviction. On cross-examination, the prosecutor established that the conviction was for felony assault with a deadly weapon. Later, the prosecutor argued that this prior conviction adversely affected Olano's credibility.

    Olano concedes his trial counsel did not request that the trial court sanitize evidence of the prior to preclude the jury from learning that it was for an assault with a deadly weapon. He also admits trial counsel did not request a limiting instruction. Nevertheless, he maintains the trial court erred by failing to sanitize the evidence and failing to give a limiting instruction.

    Evidence of a prior felony involving moral turpitude is admissible to impeach a defendant who testifies as a witness in a criminal trial. (People v. Castro (1985) 38 Cal.3d) 301, 315-316 (Castro).) Assault with a deadly weapon is a crime of moral turpitude. (See, e.g., People v. Cavazos (1985) 172 Cal.App.3d 589, 593-594; People v. Jackson (1985) 174 Cal.App.3d 260, 266.) Thus, evidence of Olano's prior was admissible to impeach him.

    The trial court had discretion under Evidence Code section 352 to exclude evidence of the prior (Castro, supra, 38 Cal.3d at pp. 312-313), but it was not asked to do so. Olano now asks us to hold that the trial court had a sua sponte duty to evaluate the prior under section 352 and to sanitize it to minimize the prejudice associated with this evidence. Although neither party cites relevant authority, [Footnote 1] we conclude Olano's argument must be rejected.

    In People v. Williams (1991) 228 Cal.App.3d 146, the defendant's trial counsel conceded that evidence of the defendant's prior conviction was admissible for impeachment. Therefore, the Williams court concluded, the trial court had no obligation to evaluate the prejudicial effiect of the evidence under Evidence Code section 352. (Id. at p. 152.) In the present case, Olano's trial counsel also expressly conceded the prior assault was admissible for impeachment. Since the trial court, therefore, had no obligation to conduct a section 52 inquiry, a fortiori it had no sua sponte duty to sanitize the prior.

    Citing People v. Mayfield (1972) 23 Cal.App.3d 23)6, 235 (Mayfield), Olano contends that, even if the prior conviction evidence was properly admitted, the trial court had a sua sponte duty to instruct the jury pursuant to CALJIC No. 2.23 that it could consider the evidence only for the limited purpose of evaluating his credibility. (See also People v. Lomeli (1993) 19 Cal.App.4th 649, 654-656.)

    In Mayfield, the court reversed a defendant's conviction for illegal drug sales because of cumulative error. (Mayfield, supra, 23 Cal.App.3d 236.) According to the court, one of the errors was that the trial court did not admonish the jury that evidence of the defendant's prior manslaughter conviction was admissible only to impeach the defendant's credibility. (Id. at p. 244.) The court believed that the trial court's sua sponte duty to provide such an instruction is implicit in the language of Evidence Code section 788 which expressly states that evidence of a prior felony is admissible only for the purpose of attacking credibility. The court also suggested that the duty to admonish was a necessary corollary to the trial court's discretion to exclude such evidence when unduly prejudicial. (Id. at pp. 244-245.)

    We reject the Mayfield holding for the reasons stated in People v. Kendrick (1989) 211 Cal.App.3d 1273, 1276-1278 (Kendrick). First, imposing a sua sponte duty to instruct on the limited admissibility of impeachment evidence is inconsistent with Evidence Code section 355 which states: "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Emphasis added.)

    Second, and more importantly, Mayfield is inconsistent with Supreme Court authority establishing the ceneral rule that the trial court has no duty to instruct on its own motion as to the limited purpose of evidence. (People v. Gallego (1990) 52 Cal.3d 115, 175; People v. Johnson (1993) 6 Cal.4th 1, 49; People v. Lang (1989) 49 Cal.3d 991, 1020; People v. Collie (1981) 30 Cal.3d 43, 63-64.)

    Our Supreme Court has recognized that, in extraordinary cases involving, highly prejudicial and minimally relevant evidence, a sua sponte admonition might be required to "protect the defendant from his counsel's inadvertence." (People v. Collie, supra, 30 Cal.3d at p. 64.) But the parties have not identified nor have we found any authority involving such an "extraordinary" case.

    We interpret the relevant authority as necessarily rejecting the Mayfield holding that the trial court always has a sua sponte duty to instruct as to the limited admissibility of impeachment evidence by giving CALJIC No. 2.23. Since defense counsel did not request CALJIC No. 2.23, the trial court did not err by failing to give it.

    Olano contends he is entitled to reversal of the judgment because of the ineffective assistance of his trial counsel. He asserts counsel performed ineffectively by failing to request that the trial court (1) instruct on his third party liability defense, (2) instruct on the lesser offense of accessory after the fact, and (3) sanitize evidence of Olano's prior felony conviction and/or give the jury an instruction regarding, its limited admissibility.

    The right to effective assistance of counsel is guaranteed by both the federal and California Constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) Olano carries the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788.) "The claim of ineffective assistance of counsel involves two components, a showing the counsel 's performance "as deficient and proof of actual prejudice." (Id. at p. 786; People v. Ledesma, supra, 43 Cal.3d at pp. 215-216.)

    When, as here, the effectiveness of counsel is challenged on appeal, our review is limited to the appellate record which must affirmatively reveal that counsel's performance was deficient. (See, e.g,., People v. Babbitt (1988) 45 Cal.3d 660, 707.) To be deficient, counsel's performance must have fallen below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma, supra, 43 Cal.3d at p. 216.) In applying this prong of the test, we will reverse a conviction only when the record affirmatively reveals that counsel had no rational tactical purpose for an allegedly incompetent act or omission. [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Garrison, supra, 47 Cal.3d at pp. 783-784.)

    Further, except in circumstances not here relevant, prejudice must be affirmatively proved. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."' (People v. Ledesma, supra, 47 Cal.3d at pp. 217-218.)

    We begin by briefly addressing Olano's weakest complaint, that his trial counsel performed deficiently by failing to request a third party liability instruction because such an instruction was "necessary for the jury to understand the level of proof that it should use to determine the effect of the defense evidence that it was Garzona rather than appellant who shot Alfaro."

    As discussed above, a third party liability instruction was not "necessary." Indeed. it would have been redundant of standard CALJIC instructions that were given. (Freeman, supra, 22 Cal.3d at pp. 438-439.) For this very reason, the trial court need not give a third party liability instruction even when expressly requested by the defense. (See, e.g,., London, supra, 206 Cal.App.3d at p. 908.) Failing to request a redundant instruction that the trial court could properly refuse to give did not constitute deficient performance.

            3.    Accessory After the Fact

    Olano next challenges his counsel's failure to request an accessory after the fact instruction. The People contend Olano would not have been entitled to an instruction on this lesser related offense. We disagree.

    An accessory after the fact is defined in Penal Cbde section 32, which states: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."

    Upon request, the defendant is entitled to an instruction on a lesser related offense if (1) there is "some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged"; (2) the lesser related offense is "closely related to that charged and shown by the evidence"; and (3) the defendant is relying "on a theory of defense that would be consistent with a conviction for the related offense." (People v. Geiger, supra, 35 Cal.3d at p. 531.)

    The first two requirements of this test are clearly satisfied here. Indeed, the People do not argue to the contrary. There is a basis in the evidence -- Olano's own testimony -- on the basis of which the jury could have found Olano guilty of an offense that was "less than" and "closely related" to the charged crimes. Olano claimed he was not the shooter, but admitted that he took the gun from Garzona after the shooting, disposed of it and then lied to police about his knowledge about the shooting.

    The People contend the final requirement, that the lesser related offense must be consistent with Olano's defense, was not satisfied. They claim "the defense theory was that appellant was innocent of any wrong-doing in the shooting and subject to punishment only as a parolee, if at all, for associating with gang members or briefly possessing the weapon." They further argue an accessory instruction would have "focused the jury on a specific intent to assist in the shooting, a concept wholly inconsistent with appellant's testimony that he was shocked and horrified by what he saw and would have prevented it if he could."

    The People mischaracterize both Olano's defense theory and the specific intent element of the accessory offense. Olano's defense was not that he was completely innocent, but rather that he was not the shooter. Further, the specific intent element of the proof of "a specific intent to assist in the shooting" as the People contend. The required intent is the principal after the crime has been committed. (Pen. Code, § 32.) Olano's testimony as to his conduct after the shooting was consistent with such an intent.

    Thus, we reject the People's argument that Olano was not entitled to an accessory instruction.

    The record does not disclose why Olano's trial counsel did not ask that the jury be instructed on the lesser related offense of being an accessory after the fact. When the reason for counsel's act or failure to act is not revealed by the record and counsel was never asked for an explanation, the conduct will be deemed deficient only if "there simply could be no satisfactory explanation" for it. (People v. Pope (1979) 23 Cal.3d 412, 426.) Here, we can conceive of a satisfactory explanation for counsel's omission.

    Since all of the charges against Olano were premised on his being the shooter, the jury was faced with the choice of embracing the prosecutor's theory (i.e., that Olano was the shooter) or acquitting Olano altogether. Counsel would not have acted unreasonably had he concluded the defense evidence in this particular case was sufficiently strong to force this choice on the jury by not giving it the accessory option. Had Olano's counsel requested an accessory instruction, he would have provided the option of convicting Olano of a much less serious offense. but he would also have excused the prosecutor from having to prove Olano was the shooter in order to obtain a conviction. Indeed, in light of Olano’s admissions, offering the accessory option would have ensured a conviction.

    There is, thus, a rational explanation for not requesting an accessory instruction in this case. By not requesting the instruction, Olano's counsel may have made the tactical though risky decision to maximize Olano's chances for acquittal by forcing the prosecution to prove that Olano was the shooter in order to obtain a conviction. (Cf People v. Finney (1980) 110 Cal.App.3d 705, 712; People v. Byers (1970) 10 Cal.App.3d 410, 418.)

            4.    The Prior Felony Evidence

    Olano's final complaint is that his trial counsel acted deficiently by failing to request that the trial court sanitize evidence of his prior felony conviction and/or give an instruction as to the limited admissibility of that evidence.

    Not requesting sanitization of a defendant's prior felony conviction may, in some cases, constitute a tactical decision to eliminate the prejudicial effect of the jury 's speculation as to the nature of the prior conviction. (Cf. Castro, supra, 38 Cal.3d at-p. 319.) However, we are not persuaded that Olano's trial counsel made such a tactical decision in the present case because the nature of the prior conviction was so prejudicial. Olano was previously convicted of one of the very crimes charged in the present case, felony assault with a firearm.

    The absence of any attempt to exclude or sanitize evidence of Olano's prior identical felony increases our concern about why defense counsel made no effort to limit the jury's use of the prior felony evidence. The People concede Olano "probably would have been entitled to a limiting instruction on the use of the impeachment prior had he requested one." There is no "probably" about it. The trial court expressly ruled that evidence of Olano's prior felony was not admissible to prove identity. "Where evidence is received for a restricted purpose, the party against whom it is offered is entitled on request to an instruction limiting its effect to the particular purpose." (5 Witkin, Cal. Criminal Law, supra, § 2944, p. 3618, and cases cited therein; see also Evid. Code, § 355.)

    In fact, two standard CALJIC instructions expressly address this situation. CALJIC No. 2.09 instructs that evidence admitted for a limited purpose cannot be considered for any purpose except the limited purpose for which it was admitted. (CALJIC No. 2.09 (6th ed. 1996).) CALJIC No. 2.23 instructs that the fact that a witness has been convicted of a felony may be considered only for the purpose of determining the believability of that witness and that such a conviction does not necessarily destroy or impair a witness's believability. (CALJIC No. 2.23 (6th ed. 1996).) Although we have declined to impose a sua sponte duty to give CALJIC No. 2.23, we certainly do not question its value to a testifying defendant with a prior felony conviction. In this regard, we note that the Committee that drafted CALJIC No. 2.23 expressly "recommends that the trial judge bring this matter to counsel's attention should the need for this instruction arise." (CALJIC No. 2.23 (6th ed. 1996) Use Note.)

    Although the facts of this case warranted giving both CALJIC Nos. 2.09 and 2.23, neither instruction A,.as given. Apparently the prosecution requested No. 2.09, but then withdrew that request. Had Olano's counsel conducted even the most cursory research, he would have discovered the authority we discuss above which establishes (1) the general rule that a trial court has no sua sponte duty to give a limiting instruction regarding the admissibility of evidence and (2) when, as here, evidence is admitted for a limited purpose, the defendant is entitled to a limiting instruction upon request. Notwithstanding this authority, Olano's counsel did not request CALJIC Nos. 2.09 or 2.23 or, for that matter, any other instruction.

    Our task is to consider any conceivable explanation for counsel's omissions. Courts have recognized that a defense counsel's failure to request an instruction as to the limited admissibility of evidence may reflect a reasoned decision to foreco the benefits of such an instruction to avoid the risk that giving a limiting instruction will emphasize the prejudicial evidence to the jury. (People v. Hawkins (1995) 10 Cal.4th 920, 942; People v. Freeman (1994) 8 Cal.4th 450, 494; People v. Bonilla (1985) 168 Cal.App.3d 201,206.) However, the record in this case negates any argument that defense counsel wanted to distract the jury from evidence that Olano had a prior conviction.

    After conceding Olano's prior felony conviction was admissible for impeachment, defense counsel himself introduced evidence of the fact of the prior, via the testimony of Olano’s parole officer. The defense then used Olano's parole status to explain Olano's conduct immediately after the shooting (i.e., Olano ran, hid the gun and lied to police to avoid detection of his parole violations). In this sense, defense counsel's goal was not to de-emphasize the prior conviction. However, counsel clearly did recognize that the evidence could be used improperly. Indeed, defense counsel obtained an express ruling that the prior felony evidence could not be used to prove the identity of the shooter.

    Thus, the defense strategy was to use Olano's parole status to explain his conduct but, at the same time, to prevent the jury from misusing evidence of Olano's prior to prove the identity of the shooter. The need to prevent misuse of the prior evidence grew even stronger when defense counsel failed to request sanitization of the prior; once the jury learned Olano's prior felony conviction was for an assault with a firearm, it became extremely likely the jury would misuse the prior felony evidence to resolve the primary controverted issue in the case. Nevertheless, defense counsel (1) failed to secure an admonition evidence of the prior felony was introduced to the jury and (2) failed to request instructions limiting the jury's use of this evidence and explaining to them the evidence did not necessarily adversely affect Olano's credibility as a witness. Under these circumstances, we can conceive of no rational explanation for failing to request that evidence of Olano's prior be sanitized and failing to request any instruction regarding the limited admissibility of the prior felony conviction.

    We evaluate counsel's error in the context of a record which does not contain overwhelming evidence of Olano's guilt. The People’s evidence was equivocal and internally inconsistent. Several witnesses changed their stories and contradicted each other. The testimony of Garzona and his wife was particularly suspicious since Garzona was, himself, a primary suspect in the shooting. Further, testimony about where Garzona was when the shooting occurred was rife with contradiction. On the other hand, Olano's defense was not implausible and was aptly supported by his own testimony.

    That the evidence of Olano's guilt was not overwhelming is also reflected in the record of the jury proceedings. Thejury deliberated for three days. It asked to review the testimony of the victim. It also asked to review the testimony of Petra Alferez, who was unable to identify Olano and who contradicted several prosecution witnesses by testifying that she and Garzona were together in the kitchen when the shooting occurred. The jury also asked to re-play the video tape of the party. Although ultimately convicting Olano on all counts, this jury was apparently not overwhelmed by the prosecution's case.

    On this record, the combined effect of the failure to request sanitization and to secure any admonition as to the limited admissibility of the prior felony was, we conclude, prejudicial. The crucial contested issue in this case was the identity of the shooter. The trial court expressly ruled that evidence of the prior felony was not admissible to prove identity. Nevertheless, because of trial counsel's error, the jury was never instructed that evidence regarding the nature of Olano's prior felony was not relevant or admissible to prove the identity of the shooter, or for any other purpose except to evaluate Olano's credibility as a witness. The People's contention that there was no prejudice because the prosecutor never argued that the prior felony evidence should be used for an improper purpose misses the point. The jury was never instructed what was and was not a proper purpose.

    Not requesting sanitization of the prior unquestionably exacerbated the prejudice caused by failing to request a limiting instruction because the prosecution was allowed to highlight the similarity between the prior and the charged offenses. During crossexamination of Olano's parole officer, the prosecutor established that the prior felony conviction was for assault with a firearm. While examining Olano, the prosecutor noted that Olano was on parole for assault with a deadly weapon when the shooting occurred. Again, during closing argument, the prosecutor reminded thejury that Olano's prior conviction was for assault with a firearm.

    Our confidence in the outcome of this case is undermined because it is simply too likely that the jury resolved the conflicts in the evidence and answered the crucial identity question by concluding that, if Olano committed assault with a deadly weapon before, he likely did it again. That the jury was permitted to use the prior conviction evidence in this way notwithstanding the trial court's express ruling that the evidence was inadmissible to prove identity or for any purpose other than impeachment requires reversal of the judgment. [Footnote 2]

The judgment is reversed.

Haerle, J.

We concur:

Kline. P.J.
Lambden. J.

Footnote 1: The People contend that it "has long been established" that failure to request sanitization waives the issue on appeal. The only authority they cite for this proposition does not support it. (See People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 8 [rejecting waiver argument as a factual matter because defendant did object below].)

    The People's waiver argument finds some support in People v. Green (1995) 34 Cal.App.4th 165, 182, fn. 9 (Green), a case which neither party has cited. The Green court found that the failure to request that the trial court sanitize the description of a defendant's priors waived the issue on appeal. We note, though, that the only authority Green cites for this proposition does not support it. (See People v. Renteria (1992) 6 Cal.App.4th 1076, 1078, 1082.)

Footnote 2: In light of this conclusion, it is unnecessary for us to address the contention that the judgment must be vacated with directions to the trial court to permit Olano's counsel to investigate his claim of jury misconduct.