Filed 1/23/14 P. v. Blanchard CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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 This opinion has not been certified for publication 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 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

MICHAEL PATRICK BLANCHARD, 

Defendant and Appellant. 

 H038120 

 (Santa Clara County 

 Super. Ct. No. C1077310) 

 Defendant Michael Patrick Blanchard appeals after conviction, by jury trial, of one 

count of attempted criminal threat (Pen. Code, §§ 422, 6641

) and two counts of assault 

with a deadly weapon (§ 245, subd. (a)(1)). He was placed on probation for three years 

and ordered to serve a one-year county jail term as a condition of probation. 

 On appeal, defendant contends: (1) the trial court erred by reopening the case for 

an instruction and argument on attempted criminal threat; (2) the trial court erred by 

excluding documentary evidence of a witness’s prior conviction; and (3) trial counsel was 

ineffective for failing to object when the prosecution introduced evidence that 

defendant’s credit card had been declined. For the reasons stated below, we will affirm 

the judgment. 

 1

 All further statutory references are to the Penal Code unless otherwise indicated. 
2

BACKGROUND 

A. Incident at the Brittania Arms 

 On April 4, 2010, Tiffani Sturges was at the Brittania Arms on Almaden 

Expressway. She sat at the bar while waiting for a friend. Defendant came over and sat 

near Sturges, then struck up a conversation with her. 

 During their conversation, defendant claimed he was a social worker who made 

$80,000 per year. Defendant got angry when Sturges told him she did not believe he 

made that much money. He then told her, “you need to, like, suck my dick, or I’m going 

to slit your throat.” Sturges “kind of laughed” and responded, “No, I’m not.” Defendant 

said, “I can make you.” Sturges “didn’t think he was serious” and told him, “You’re 

ridiculous.” 

 Defendant repeated his threat, saying, “I’m going to follow you home and I’m 

going to make you suck my dick and I am going to slit your throat.” Sturges responded, 

“You don’t know where I live.” Defendant said, “I do know where you live. I know 

where your family lives.” 

 Defendant also told Sturges, “I have a knife.” Sturges responded, “Oh, really?” 

Defendant then took out a Leatherman multi-purpose tool, held it underneath the bar, and 

opened the knife implement. Sturges was “stunned.” Defendant repeated his threat. 

Sturges told him, “don’t threaten me,” saying she had “cops” in her family. Defendant 

replied, “I don’t care. I am a Hell’s Angel.” 

 Sturges felt “pretty terrified,” but she did not yell out for help. She was “in 

shock,” and she thought defendant might respond by stabbing her. She did not try to 

leave the bar, fearing defendant might follow her home as he had threatened. Instead, she 

tried to think of a way to get help without attracting a lot of attention. 

 When defendant got up to use the restroom, he told Sturges he would follow her if 

she left. Sturges remained at the bar but asked the bartender for her bill. She then wrote 

a note on the back of the receipt, indicating that defendant had threatened her. 
3

 Nicholas Stagnaro, the manager of the Brittania Arms, read Sturges’s note. He 

told two of the security guards, Joe Anderson and Nicholas Lancaster, about the threat. 

Anderson and Stagnaro approached defendant and asked him to step outside with them. 

After speaking with defendant and giving him a “verbal warning,” they allowed him to 

reenter the bar. 

 Back in the bar, defendant was looking at Sturges, “staring her down.” Anderson 

and Stagnaro therefore told defendant, “it’s time to call it a night” and asked him to leave. 

Defendant exited, but he became “agitated” once he was outside. He repeatedly told 

Anderson to “come around the corner,” saying “he had something for him.” Lancaster 

told defendant to leave. 

 From about 15 feet away, defendant threw the opened Leatherman tool at 

Anderson and Lancaster. The tool went in between the two security guards, both of 

whom had to jump out of the way. The tool landed four buildings down from the 

Brittania Arms. Defendant then ran off. 

B. Defense Case 

 Detective Carlos Melo testified that he viewed two different videotapes prepared 

from the Brittania Arms’s security cameras. Neither tape showed defendant throwing the 

tool, as both tapes stopped before that part of the incident. 

 Four people who worked with defendant and/or socialized with him outside of 

work testified to his non-violent character. None of the four had ever seen how defendant 

reacted after being rejected by a woman. 

C. Procedural History 

 Defendant was charged, by information, with two counts of criminal threat (§ 422; 

counts 1 & 2) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 

3 & 4). Count 1 charged defendant with making a threat to Sturges. Count 2 charged 

him with making a threat to Anderson. Count 3 charged defendant with assaulting 

Anderson. Count 4 charged him with assaulting Lancaster. The prosecutor moved to 
4

dismiss count 2 during trial, noting that Anderson had moved out of state and would not 

be testifying. 

 The jury returned its verdicts on January 13, 2012. In count 1, the jury found 

defendant not guilty of criminal threat but guilty of a lesser included offense: attempted 

criminal threat. The jury convicted defendant of assault with a deadly weapon (§ 245, 

subd. (a)(1)) as charged in counts 3 and 4. 

DISCUSSION 

A. Reopening/Attempted Criminal Threat 

 Defendant contends the trial court erred by reopening the case, during jury 

deliberations, for an instruction and argument on attempted criminal threat. He claims 

that the process effectively lessened the prosecution’s burden of proof, deprived him of 

due process, and encouraged the jury to reach a verdict. 

1. Proceedings Below 

 As noted above, in count 1, defendant was charged with making a criminal threat 

in violation of section 422. Initially, the trial court did not give a lesser included offense 

instruction for count 1, and neither of the parties requested such an instruction. 

 During closing arguments, the defense focused on Sturges’s credibility. The 

defense argued that “there was no threat that was made,” but also that someone who was 

in sustained fear would not have stayed in the bar and continued to drink alcohol. 

 The jury deliberated for 45 minutes on January 10, 2012 and all day on January 

11, 2012. After about one hour and 25 minutes of deliberations on January 12, 2012, the 

jury submitted the following request to the court: “Please provide [a] more clear and 

specific definition of sustained fear with examples.” 

 The trial court told the parties it had prepared a response that referred the jury 

back to some of the instructions. The court further noted that during discussions about 

the jury’s question, the prosecutor had “raised the issue that the court should have 
5

instructed on attempted criminal threat . . . and requested that the court give that 

instruction now.” Defendant had objected on the basis that “substantial evidence did not 

support giving the instruction.” 

 The trial court indicated it had reevaluated Sturges’s testimony and “realized that 

substantial evidence would support the giving of an instruction for attempting to make a 

criminal threat . . . as a lesser included offense to count one.” The court further noted that 

it “should have instructed on that crime initially” and that its failure to do so had been an 

“oversight.” The court determined that it would give the instruction and then give the 

attorneys the opportunity to present argument on the issue. 

 Defendant reiterated his argument that substantial evidence did not warrant the 

instruction, and he objected “on due process grounds.” 

 The trial court then instructed the jury that “attempt to make a criminal threat” was 

a lesser included offense to count 1, and it instructed the jury on the elements of that 

offense. The trial court also reinstructed the jury with CALCRIM No. 220 (specifying 

that the People have the burden of proving the defendant guilty beyond a reasonable 

doubt, and defining reasonable doubt), and it reminded the jurors “not to consider 

anything I said or did during the trial as an indication of what I think about the facts, the 

witnesses, or what your verdict should be.” 

 The attorneys then presented short arguments. The prosecutor argued that if 

defendant “made the threat with the intent but it didn’t scare her or it didn’t scare her for 

a sustained period of time he’s guilty of the lesser.” The prosecutor further argued, 

“However, in this case you heard from Miss Sturges that she did hear the threat and she 

was scared.” The prosecutor argued that Sturges remained in fear until defendant was 

gone and the police arrived: “That’s sustained fear.” 

 Defendant responded by telling the jury it was essentially being given an 

opportunity to reach a “compromise” but that it did not “have to take that.” Defendant 
6

also argued that Sturges was not in sustained fear, noting that she had remained at the bar 

and continued to drink after the alleged threat. 

 Following the additional instructions and argument on January 12, 2012, the jury 

deliberated briefly and heard readback of Sturges’s testimony. The jury returned for 

additional deliberations at 1:40 p.m. on January 13, 2012, and it reached its verdicts at 

2:43 p.m. that day, finding defendant not guilty of criminal threat but guilty of attempted 

criminal threat. 

2. Analysis 

 Defendant argues that it was inappropriate to give the instruction on attempted 

criminal threat in response to the jury’s question about the meaning of the term 

“sustained fear.” He contends the trial court, in effect, “impermissibly dictated to the 

jury that the solution to their question” was to convict him of attempted criminal threat. 

According to defendant, the “late instruction” (1) reduced the prosecution’s burden of 

proof, (2) denied him due process of law and fair notice, and (3) improperly encouraged 

deadlocked jurors to reach a verdict. 

 Similar late instructions were challenged in People v. Ardoin (2011) 

196 Cal.App.4th 102 (Ardoin). In that case, defendant Ardoin was charged with first 

degree murder and prosecuted “as the direct perpetrator,” while his codefendant was 

prosecuted under “aiding-and-abetting and felony-murder theories.” (Id. at p. 123.) The 

original jury instructions on aiding and abetting and felony murder referred only to the 

codefendant. However, “the evidence presented at trial was also susceptible to 

interpretations that both defendants directly and conjointly participated in the robbery and 

murder of the victim, or that either of them may have perpetrated the robbery and aided 

and abetted the other to commit the murder.” (Ibid.) During deliberations, the jury asked 

if it could find defendant Ardoin guilty under “a theory of felony murder, or otherwise,” 

if it believed he was not the direct perpetrator. (Id. at p. 124.) Over defense objection, 

the trial court replaced the original jury instructions on felony murder with instructions 
7

that referred to both defendants. The court did not, however, reopen arguments after 

giving the revised instructions. 

 The Ardoin court determined that the trial court did not abuse its discretion by 

giving the “supplemental instruction[s] on felony murder following closing argument.” 

(Ardoin, supra, 196 Cal.App.4th at p. 127.) The court noted that the trial court “had the 

statutory obligation ‘to provide the jury with information the jury desires on points of 

law’ ” as well as the duty “to instruct the jury on the law relevant to the issues raised by 

the evidence.” (Id. at pp. 127-128.) However, the trial court had erred by failing to 

reopen the case to allow defendant Ardoin the opportunity to “offer rebuttal argument” in 

order to “prevent unfair prejudice.” (Id. at p. 129.) An opportunity to argue about the 

new theory should have been given to effectuate the defendant’s “ ‘ “constitutional rights 

to counsel and to due process of law.” ’ ” (Ibid.) 

 Nevertheless, the court determined that no actual prejudice had resulted. (Ardoin, 

supra, 196 Cal.App.4th at p. 131.) The defendant had received notice of his potential 

culpability under the felony-murder rule “through the first degree murder charge and 

evidence presented at trial.” (Ibid.) Further, defense counsel was aware that felonymurder principles were at issue in the case, but he chose to argue that Ardoin was “not 

present at all when the murder occurred.” (Id. at p. 132.) Thus, the late instruction “did 

not introduce any new and different theory or factual elements into the case to be 

contested by the defense.” (Id. at p. 133.) 

 In this case, the trial court did not abuse its discretion by instructing the jury on 

attempted criminal threat after the jury asked a question about the meaning of “sustained 

fear.” The trial court had the duty to provide relevant information in response to the 

jury’s question (see Ardoin, supra, 196 Cal.App.4th at p. 127), and as defendant 

acknowledges, the trial court had the obligation to give “ ‘ “instructions on lesser 

included offenses when the evidence raises a question as to whether all of the elements of 

the charged offense were present.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 115.) 
8

 The late instruction on attempted criminal threat did not reduce the prosecution’s 

burden of proof. Although the jury did not need to find all of the elements of criminal 

threat in order to convict defendant of attempted criminal threat (see People v. Toledo

(2001) 26 Cal.4th 221, 231), the jury was still required to find all of the elements of 

attempted criminal threat beyond a reasonable doubt. The trial court, in fact, specifically 

repeated the reasonable doubt instruction to ensure the jury understood this. 

 The late instruction also did not deprive defendant of due process or fair notice. 

First, instructions on lesser necessarily included offenses do not surprise either party 

“because, by definition, the stated charge gives notice to both that all the elements of any 

such offense are at issue.” (People v. Birks (1998) 19 Cal.4th 108, 112.) Second, under 

the circumstances here, the late instruction did not unfairly surprise defendant. 

Defendant had initially argued that the jury should not convict him of count 1 because 

“there was no threat that was made,” and because someone who was in sustained fear 

would not have stayed in the bar and continued to drink alcohol. Trial counsel did not 

have to make an inconsistent argument following the attempted criminal threat 

instruction—he could have simply reiterated his prior argument that “there was no threat 

that was made.” 

 Last, the late instruction did not improperly encourage the jury to reach a verdict. 

Defendant cites to People v. Gainer (1977) 19 Cal.3d 835, 852 (disapproved of by People 

v. Valdez (2012) 55 Cal.4th 82, 163), in which the court held that “it is error for a trial 

court to give an instruction which either (1) encourages jurors to consider the numerical 

division or preponderance of opinion of the jury in forming or reexamining their views on 

the issues before them; or (2) states or implies that if the jury fails to agree the case will 

necessarily be retried.” Here, however, the instruction did neither of those prohibited 

items; it simply advised the jury it could consider convicting defendant of attempted 

criminal threat, and it informed the jury of the elements of that offense. Moreover, the 

instruction was accompanied by the trial court’s admonition “not to consider anything I 
9

said or did during the trial as an indication of what I think about the facts, the witnesses, 

or what your verdict should be.” 

 In his reply brief, defendant contends his case is similar to People v. Stouter

(1904) 142 Cal. 146 (Stouter). In Stouter, the defendant was charged with committing a 

lewd or lascivious act upon a child—specifically, insertion of a finger into the child’s 

vagina. (Id. at p. 147.) The trial court originally instructed the jury that in order to find 

the defendant guilty, it had to find “beyond a reasonable doubt, that the said defendant 

did insert a finger” into the child’s vagina. (Ibid.) After some deliberations, the jury 

asked if a guilty verdict required that the defendant have inserted his finger into the 

vagina, and whether an “ ‘attempt to insert the finger in the vagina’ ” would be sufficient. 

(Id. at p. 148.) The trial court referred the jury back to the original instructions, and the 

jury deliberated again. The jurors then returned and told the trial court that they “could 

not agree.” (Id. at p. 149.) After conversing with the jurors about their individual 

opinions, the trial court “for the first time, gave the jury a new instruction, to the effect 

that they might find the defendant guilty of an ‘attempt’ to commit the crime charged.” 

(Ibid.) “The jury then retired again and returned the verdict convicting defendant of the 

attempt.” (Ibid.) 

 The Stouter court found that the late attempt instruction had interfered with the 

defendant’s right to a fair trial. The court noted that the late instruction was “clearly an 

afterthought suggested by the statements of the jurors” and that it was “apparently 

intended to help them, not generally to arrive at a verdict, but to arrive at some sort of a 

verdict of guilty.” (Stouter, supra, 142 Cal. at p. 150.) In addition, the court found that 

the evidence “was not sufficient to support a verdict of guilty of an attempt.” (Id. at 

pp. 150-151.) 

 Significantly, issued in 1904, Stouter predated the recognition of the rule that a 

trial court must instruct sua sponte on lesser included offenses as part of its duty to 

instruct sua sponte on the general principles of law governing the case. (See People v. 
10

Hood (1969) 1 Cal.3d 444, 449-450 [overruling earlier cases to the extent they held that it 

is not error for a trial court to fail to instruct on lesser included offenses on its own 

motion, even though such an instruction would be supported by the evidence].) Now, it 

is well-settled that “ ‘[t]he obligation to instruct on lesser included offenses exists even 

when as a matter of trial tactics a defendant not only fails to request the instruction but 

expressly objects to its being given. [Citations.] Just as the People have no legitimate 

interest in obtaining a conviction of a greater offense than that established by the 

evidence, a defendant has no right to an acquittal when that evidence is sufficient to 

establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman

(1998) 19 Cal.4th 142, 154-155 (Breverman).) 

Stouter is also distinguishable from the instant case, where no argument is being 

made that the lesser included offense instruction was inappropriate based on the evidence 

introduced at trial. This case thus contrasts with Stouter, where the court found that the 

evidence was not sufficient to find the defendant guilty of an attempt. (See Stouter, 

supra, 142 Cal. at pp. 150-151.) 

 Defendant also relies on the Ninth Circuit’s opinion in Sheppard v. Rees

(9thCir. 1989) 909 F.2d 1234 (Sheppard) to support his contention that his “Sixth 

Amendment[] right to adequate notice was violated.” In Sheppard, the defendant was 

charged with murder and “[t]he case was tried before a jury on the theory that the killing 

was premeditated and deliberate.” (Id. at p. 1235.) “At no time . . . was the concept of 

felony-murder raised, directly or indirectly,” but on the day set for closing arguments, the 

prosecutor asked for instructions on robbery and felony murder, and the trial court agreed 

to give those instructions. (Ibid.) 

 The State of California eventually conceded that under the circumstances of the 

case, Sheppard was “ ‘denied adequate notice and opportunity to prepare to defend 

against a charge of felony-murder.’ ” (Sheppard, supra, 909 F.2d at p. 1236.) The Ninth 

Circuit agreed that the government had “ ‘ambushed’ the defense with a new theory of 
11

culpability,” noting that “[d]efense counsel would have added an evidentiary dimension 

to his defense designed to meet the felony-murder theory had he known at the outset what 

he was up against.” (Id. at p. 1237.) 

 We conclude Sheppard is inapposite as it did not involve an instruction on a lesser 

included offense. As noted above, the trial court has a sua sponte duty to give lesser 

included offense instructions, even when neither party requests such an instruction. 

(Breverman, supra, 19 Cal.4th at pp. 154-155.) Giving an instruction on a lesser 

included offense did not “ ‘ambush[]’ the defense with a new theory of culpability.” 

(Sheppard, supra, 909 F.2d at p. 1237.) As previously discussed, one of the defense 

theories was that “there was no threat that was made,” and thus, giving the attempt 

instruction did not require that the defense add a further “evidentiary dimension” to its 

case. (Ibid.) 

 In sum, under the circumstances here, we find no error in the trial court’s decision 

to instruct the jury on the lesser included offense of attempted criminal threat during 

deliberations. 

B. Exclusion of Documentary Evidence of Sturges’s Prior Conviction 

 Defendant contends the trial court erred by excluding documentary evidence of 

Sturges’s prior conviction for petty theft. 

1. Proceedings Below 

 During trial, the prosecutor discovered that Sturges had a 2011 conviction for 

petty theft where the value of the property taken was under $50, an infraction. (See 

§ 490.1.) The prosecutor objected to the use of that conviction for impeachment, while 

defendant advocated for it to be admitted. 

 The trial court indicated that it would allow Sturges to be impeached with the 

conduct underlying her conviction, but not with documentary evidence of the conviction. 

Defendant indicated he had a “certified court order” showing that Sturges had pleaded no 

contest in the case. 
12

 The trial court reviewed the documentation, then ruled that defendant could ask 

Sturges whether she committed a petty theft and whether she had suffered an infraction 

conviction for petty theft. The trial court indicated defendant might be able to use the 

documentation to impeach Sturges if she denied the conduct and/or conviction. 

 On direct examination, the prosecutor asked Sturges whether she had pleaded no 

contest to a criminal charge of petty theft in 2011. Sturges admitted that she had suffered 

the conviction and that she had been “stealing something.” On cross examination, 

defendant asked Sturges to confirm that she “pled no contest to an infraction.” Sturges 

said, “Yes.” 

 At the end of trial, defendant offered documentation of Sturges’s conviction into 

evidence, describing it as a certified copy of a minute order. He argued that the minute 

order should be judicially noticed, and that it “should go to the jury.” The prosecutor 

objected, arguing that Sturges had “fully admitted” the crime. 

 The trial court refused to admit the minute order, ruling: “One, it’s hearsay. [¶] 

Two, she testified that she had the petty theft conviction. [¶] It simply serves no 

purpose. [¶] And I don’t think there’s any authority for admitting that.” 

2. Analysis 

 Defendant first contends the trial court erred by finding that the minute order was 

hearsay. The Attorney General does not dispute this point. Although the documentation 

defendant offered is not part of the record, a certified copy of a minute order showing a 

conviction is typically not made inadmissible by the hearsay rule. (See Evid. Code, 

§ 452.5, subd. (b); People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461.) 

 Defendant next contends that the trial court erred by finding that admission of the 

minute order would “serve[] no purpose.” Acknowledging that Sturges admitted 

suffering the prior conviction, he contends: “Simply because a person has testified to the 

facts of the exhibit does not make that exhibit unnecessary.” Respondent contends the 
13

minute order “would have been cumulative” to Sturges’s testimony and that the trial 

court therefore did not err in excluding it. 

 “We review for abuse of discretion a trial court’s rulings on the admissibility of 

evidence. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 337.) Here, we discern 

no abuse of discretion. The trial court could reasonably find that, given Sturges’s 

testimony admitting that she had pleaded no contest to a criminal charge of petty theft, 

the minute order documenting that infraction would have added nothing to the evidence. 

(See People v. Kronemyer (1987) 189 Cal.App.3d 314, 350 [documentary evidence was 

cumulative of expert testimony]; People v. Thuss (2003) 107 Cal.App.4th 221, 234 

[photographs were cumulative of other evidence relating to witness’s credibility]; Evid. 

Code, § 352.) Moreover, because the minute order was merely cumulative of Sturges’s 

testimony, defendant fails to show a reasonable probability that the trial court’s ruling, 

even if error, affected the outcome of the case. (See People v. Kronemyer, supra, at 

p. 350.; People v. Watson (1956) 46 Cal.2d 818, 836-837.) 

C. Ineffective Assistance of Counsel/Credit Card 

 Defendant contends trial counsel was ineffective for failing to object when the 

prosecution introduced evidence that defendant’s credit card had been declined. 

1. Proceedings Below 

 The evidence about defendant’s credit card came in through the testimony of 

Stagnaro, the manager of the Brittania Arms. The prosecutor asked Stagnaro how he was 

able to give the police identifying information about defendant. Stagnaro mentioned that 

defendant had “left his tab open with his – his credit card – was declined, I believe.” The 

prosecutor then introduced a copy of the “credit card declined slip,” along with a copy of 

defendant’s bill. Stagnaro explained that defendant had opened a tab and left his credit 

card at the bar. After the incident, they had “swiped the card and it was declined.” 

Stagnaro further explained that credit cards are typically declined for “insufficient funds” 
14

or because “something is wrong with the card.” Defendant did not object to this 

evidence. 

2. Analysis 

 A defendant who presents a claim of ineffective assistance of counsel on appeal 

must show that the performance of his or her trial counsel was deficient, and that he or 

she was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 

(Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) “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.” (Strickland, supra, at 

p. 694.) “Thus, to be entitled to reversal of a judgment on grounds that counsel did not 

provide constitutionally adequate assistance, the petitioner must carry his [or her] burden 

of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of 

the errors or omissions of counsel. [Citation.]” (People v. Williams (1988) 44 Cal.3d 

883, 937 (Williams).) 

 “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a 

claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption 

that counsel’s conduct falls within the wide range of reasonable professional assistance.’ 

[Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “We have repeatedly 

stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to 

act in the manner challenged[,] . . . unless counsel was asked for an explanation and 

failed to provide one, or unless there simply could be no satisfactory explanation,” the 

claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 

15 Cal.4th 264, 266-267.) 

 Defendant contends that trial counsel could not have had a tactical reason for 

failing to object to the evidence of his credit card being declined. He contends the 

evidence “was not relevant to the issue of whether defendant threatened or assaulted 
15

anyone on the night of April 4, 2010.” Defendant contends the evidence served only to 

defame his character and that as such, it was inadmissible pursuant to Evidence Code 

section 1101. 

 Even assuming that reasonable trial counsel would have objected to Stagnaro’s 

testimony about defendant’s credit card being declined, defendant fails to explain how, 

“but for counsel’s unprofessional error[], the result of the proceeding would have been 

different.” (Strickland, supra, 466 U.S. at p. 694.) Having a credit card declined is not 

the type of damaging character evidence that can cause serious prejudice. (Cf. People v. 

Albarran (2007) 149 Cal.App.4th 214, 230 [certain “gang evidence was extremely and 

uniquely inflammatory, such that the prejudice arising from the jury’s exposure to it 

could only have served to cloud their resolution of the issues”], fn. omitted; People v. 

Parsons (1984) 156 Cal.App.3d 1165, 1171 [evidence of a prior arrest “is not as 

prejudicial as evidence of a prior conviction”].) Defendant fails to explain how evidence 

that he may have had insufficient funds or a defective credit card was likely to affect the 

jury’s view of the case. Under the circumstances, defendant has failed to “carry his 

burden of proving prejudice as a ‘demonstrable reality.’ ” (Williams, supra, 44 Cal.3d at 

p. 937.) 
16

DISPOSITION 

 The judgment is affirmed. 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, ACTING P.J. 

WE CONCUR: 

__________________________ 

MÁRQUEZ, J. 

__________________________ 

GROVER, J.