Filed 1/16/14 P. v. Nunez CA4/3

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MIKE CARRILLO NUNEZ, Defendant and Appellant. G047779 (Super. Ct. No. 11CF3422)

O P I N I O N

Appeal from a judgment of the Supe rior Court of Orange County, Dan McNerney, Judge. Affirmed. Alan S. Yockelson, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assi stant Attorney Genera l, Steve Oetting and Michael T. Murphy, Deputy Attorneys General, for Pl aintiff and Respondent.
* * *2 Defendant Mike Carillo Nunez appe als his conviction for aggravated assault and a related enhancement. He argue s the trial court abused its discretion by allowing the prosecution to question him ab out the circumstances of a plea bargain leading to his prior conviction. He also contends his defense counsel’s conduct constituted ineffective assistance of counsel by “opening the door” to such questions. We
conclude the trial court acted within its discretion by permitting th e testimony and that
defense counsel was not deficient for rais ing the point on direct examination.
I
FACTS Given the limited issues on appeal, it is not necessary to recount the facts of this case in detail. Suffice to say that defe ndant met Jesus Caballero late one night in
December 2011 when defendan t, who was standing on a street corner, waved to Caballero, who was driving pa st. Defendant told Caballe ro he was a prostitute and offered sex for money, and the two engaged in some sexual behavior later that night. A few days later, Caballero called defendant an d invited him to a party. At the party, defendant became “very intoxicate d.” They left that party at a security guard’s request,
and went to another. They eventually left th at party and went to Cabellero’s house, where he lived in a converted garage. Defendant went into the bathroom, wh ich had a second door that led to the main part of the house. A few minutes later, defe ndant returned with a
kitchen knife and stabbed Ca ballero in the stomach. When Caballero asked why defendant had stabbed him, defendant said because Caballero wanted to rob him. Defendant left the garage, and police were ev entually called and res ponded. They found defendant being detained by one of Caballero’s family members. They also found a knife
with dried blood on it that could have come from the kitchen. Caballero had two separate stab wounds, which would have been fatal if left untreated. He un derwent two surgeries to repair the injuries. Caballero testified th at he was in the country illegally, and after the3 incident with defendant, he learned that a “U visa” would allow him to stay in the country if he cooperated with law en forcement and prosecutors. At trial, defendant testified that afte r he met Caballero, he continually told him that he was only interested in women. With regard to the night of the stabbing,
defendant testified that he want ed to go back to his hotel th at night but Caballero refused to take him, and that Caballero made sexual a dvances toward him. Fearing that Caballero would rape him, he brought the knife back into the room from the kitchen. When he returned, Caballero again began making advanc es toward him, and he stepped back and took the knife from his shoe. He hoped to sc are Caballero, but Caballe ro jumped on him, resulting in Caballero’s injuries. He left because he was on prob ation and afraid of trouble with the police. Defendant was charged with aggravat ed assault (Pen. C ode, § 245, subd. (a)(1)), 1 with an allegation that he personally inf licted great bodily injury. It was further alleged that he had two prior serious felony convictions within the meaning of the “Three Strikes” law (§ 667, subds. (d), (e)(2)(A), § 1170.12, subds . (b), (c)(2)(A) and the fiveyear enhancement pr ovision of section 667, subdivision (a)(1).) At the conclusion of trial, the jury found defendant guilty of the assault charge and concluded the great bodily injury allegation was true. The court found the prior conviction allegations true. During sentencing, the court vacated th e true finding on one of the strike prior allegations. The court imposed the upper term of four years for the assault charge, doubled under the provisions of the Three Strikes law. The court also imposed consecutive terms of three years for the enhanc ement and five years for the serious felony enhancement, for a total term of 16 years.

1 Subsequent statutory refere nces are to the Penal Code.4 II
DISCUSSION During pretrial proceedings, the cour t ruled that if defendant chose to testify, the prosecution coul d use his two prior felony co nvictions, both for residential burglary, to impeach him. The court imposed restrictions on how the priors could be introduced, specifically, that th e jury would only learn that they were crimes involving
dishonest conduct. Both convictions were from 2011 and were the result of a plea bargain, which dismissed fo ur other burglary charges pursuant to a waiver under People v. Harvey (1975) 25 Cal.3d 754, 758. Defendant did choose to testify. At the beginning of his testimony, his attorney asked him if he had been convicted of two prior crimes of dishonesty, and defendant answered yes. He was asked if th e convictions were the result of a guilty plea or conviction after a trial, a nd defendant res ponded they were the result of a guilty plea. Counsel then asked if he plead guilty becaus e he was guilty, and de fendant said yes. Later, outside the presence of the jury, the pr osecutor asked to be pe rmitted to establish on cross-examination that the guilty pleas were the result of a negotiated plea bargain. The prosecutor believed, base d on defense counsel’s second and third questions, that defendant had insinuated that he was a pe rson who took responsibility for his acts, and because he did not plead guilty in this case, he must not be guilty. The prosecutor wanted the jury to be aware that it was a negotiated ba rgain in exchange for the dismissal of other

counts. Defense counsel argued the prejudic e would outweigh any probative value, but the court agreed with th e prosecutor that defendant ha d created the impression that defendant had simply pled guilty. The ques tions counsel had aske d had thereby “opened this door.” The court explained: “I agree th at the People should be given an opportunity to in some way clarify what may have been the defendant’s motives for entering the plea
to these two felonies from 2011. I have some trepidation that a broad discussion5 regarding the defendant’s other counts that were dismissed, even though he accepted financial responsibility for them , although I find it to be prob ative, I find that the jury hearing about five or six other felonies th at the defendant was charged with has the potential for being substantially more prejudicia l than probative. However, as it relates to that prior case, I will allow you to ask the defendant initia lly did you enter a not guilty plea and did you then later change your pl ea to guilty as a result of a plea bargain arrangement as to these two felony charges.” During cross-examination, the pros ecutor questioned the defendant as
follows: “Q. Okay. Sir, you — you were ch arged with crimes — felony crimes involving conduct of dishones ty; correct, last year?
“A. Yes. “Q. And when you were first brought in on those charges, you entered a plea of not guilty; correct? “A. I don’t remember. I just reme mber I went to court about two times, but my attorney didn’t show up. “Q. At some point, though, you entere d a plea of not guilty to those crimes;
correct?
“A. I don’t remember. “Q. Ultimately you decide d to change your plea a nd you decided to change your plea as a result of a plea bargain betw een yourself and the prosecution; correct? “A. I just simply said what I had done and my attorney di dn’t show up that day. It was another person who showed up [in his place] and he told me that if I signed
an offer from the district attorney that I would just get four months. “Q. So basically you were told that you would get a deal if you pled guilty;
correct?
“A. Yes6 “Q. So you decided to take that deal; correct? “A. Yes, I was told that with that, everything would be paid. “Q. Okay. And that’s why you pled guilty to two prior felonies involving
crimes with dishones t conduct; correct?
“A. Yes.” During closing argument, the prosec utor addressed defendant’s prior convictions only briefly, by informing the ju ry that they could us e them to assess his credibility. A trial court’s ruling on the admissib ility of evidence is generally reviewed for abuse of discretion. ( People v. Williams (1997) 16 Cal.4th 153, 196-197 [“[i]n determining the admissibility of evidence, the trial court has broad discretion. . . . On appeal, a trial court’s decision to adm it or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion.”].) “The appropriate test for a buse of discretion is whether the trial court exceeded the bounds of reason.” ( Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Further, even where evidence ha s been erroneously excluded or admitted, the judgment
or decision shall not be reversed unless the reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const ., art. VI, § 13; Evid. Code, §§ 353, 354.)
The court did not abuse its discretion in permitting the pros ecutor to briefly explore this issue and correct any inaccura te impression the jury may have formed. Defendant argues the court’s d ecision allowed the prosecution to highlight that defendant received a plea deal, which resulted in the impression that defendant was someone who did not accept responsibility but sought to gain any advantage. Because credibility was a key issue, he argues this was unfairly prejudic ial. But he offers no argument as to why
this additional information was more prejudicial than the existe nce of the priors involving dishonesty in the first place, which would of c ourse call defendant’s credibility and honesty into question. There was also other testimony that impeached defendant’s7 honesty, specifically, the fact that he initially told the police an entirely different story about what had happen ed that night. Further, defendant simply makes too mu ch of this issue — according to the trial transcript, the jury heard several hundr ed pages of testimony in this case, and the time spent addressing defendant’s priors constitu ted less than a page and a half. The jury learned from this testimony that defendant serv ed only four months in custody, which would hardly lead to an infe rence that defendant had commi tted a particularly serious crime. They also did not learn how many ot her charges were dismissed subject to the plea agreement. Defendant’s argument that this information would cause the jury to reach highly prejudicial conclusions about de fendant’s character is nothing more than speculation. Accordingly, defendant has no t met his burden to show that the court’s decision to allow brief questioning about defenda nt’s priors was an abuse of discretion. Defendant also argues that defense co unsel’s initial questions that “opened the door” for the prosecutor’s questions const ituted ineffective assistance of counsel.
“The standards for ineffective assistance of counsel claims are well established. ‘We presume that counsel rendered adequate assi stance and exercised reasonable professional judgment in making significant trial decisi ons.’ [Citation.] To establish a meritorious claim of ineffective assistance, defendant ‘m ust establish either: (1) As a result of counsel’s performance, the prosecution’s ca se was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirm atively shown [citations] or (2) counsel’s performance fell below an objective standard of reasonabl eness under prevailing professional norms, and there is a reasonable probability that, but fo r counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. [Citations].’ [Citation.]” ( People v. Prieto (2003) 30 Cal.4th 226, 261.) Defendant does not meet the high ba r necessary to establish ineffective assistance of counsel. At worst, defense counsel committed a tac tical error, which is8 generally not deemed reversible. ( People v. Bolin (1998) 18 Cal.4th 29 7, 333.) Even if he could persuade us that counsel’s perform ance fell below an objective standard of reasonableness, he comes nowhere close to esta blishing that but for th e error, there was a reasonable probability of a different verdict. As we discussed above, the testimony about defendant’s priors was brief. His assertion th at the evidence was “highly prejudicial” is conclusory. Further, the evid ence against him was overwhelm ing, and even without any discussion of his prior convicti ons, it is likely that he would have been convicted here.
We find no error.
III
DISPOSITION The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.