Filed 6/12/13 P. v. Daniels CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
TANA COLONIAL DANIELS,
Defendant and Appellant. B243981
(Los Angeles County Super. Ct. No. GA086163)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Darrell Mavis, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appe al, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 Defendant and appellant, Tana Colonial Daniels, appeals from the judgment entered following a jury trial which resulted in his conviction of the willful infliction of corporal injury on a “spouse/ cohabitant/child’s parent” (Pen. Code, § 273.5, subd. (a)) 1 and his admission he previous ly had been convicted of a serious and violent felony, assault with a firearm (§ 245, subd. (a )(2)), within the meaning of section 1170, subdivision (a)(3) and the Thr ee Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)). The trial court sentenced Daniels to four years in state prison. We affirm.
FACTUAL AND PROCED URAL BACKGROUND
1. Facts

. As of 2012, Shalynn Brown 2 and Daniels had been involved in a relationship for approximately 13 years and had been married for between three and four years. The couple had four children.
Between 3:30 and 4:00 in the afternoon on April 1, 2012, Brown arrived at the couple’s home at 372 East Sacramento Street in Altadena. The children were playing “in the front with [a] neighbor,” who was watc hing them. A man Brown had dated a few times, Travor Davis, was sitting in his car in one of the two stalls in Brown’s driveway.
Davis had never before been to Brown’s ho me and she did not kno w how he had gotten
her address. Brown did not know where Davis lived as the two generally met at a night club or City Walk. Davis knew Brown wa s married, however Brown had never told
Daniels about Davis and she di d not know if Daniels knew about him. Davis had never met any of Brown’s children. Brown pulled in next to Davis, got out of her car, then realized that Davis had gotten out of his car and was standing right behind her. Brown owed Davis approximately $200, which she had used to pay for, among other thi ngs, her gas bill.

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

2 Brown had suffered two prior criminal c onvictions, one in 2001 for petty theft and one in 2008 for grand theft. In 2002, Brow n was arrested, but never charged, for an incident involving “domestic violence.”3 When Davis asked her for the money back, she told him that she did not have it and the two began to argue. Davis, who was yelling at Brown, th en pushed her into her house and, as they were standing in the dining room, pulled Brown toward him and hit her in her eye with his fist. After hitting Brown, Davis “took off.” Brown, who suffered a cut under her eye, 3 called 911 and, although she and Davis had no children together, she told the opera tor that her “baby’s father” had hit her. 4
Brown indicated she had lied about who had hit her because Daniels had been cheating on her and, if he had not d one so, she “probably never would [have been] in this predicament . . . .” She was seeing Davi s simply because Daniels had been having
affairs. When an ambulance and sheriff’s deputies arrived at Brown’s home, she told the deputies her boyfriend, Travor Davis, had hit her and she gave to the deputies Davis’s phone number, although the last time she ha d tried to call him sh e had been told the
number had been disconnected. She also brought up Daniel s. Brown initially told the police that her “ ‘boyfriend hit [her.]” She th en said, “ ‘Well, Mr. Daniels.’ ” She named Daniels after considering how he had been “cheating and had se veral relationships . . . .” Later that evening, because she was afra id Davis might come back to her home, Brown took her children and went to her gr andmother’s house in Los Angeles. Brown
did not know if Daniels went to their home in Altadena that night. Brown, however, saw Daniels the following day and told him she ha d been “jumped.” She did not tell him the injury to her eye had been in flicted by Davis because she was “kind of scared.” Brown
still loved Daniels and wished to remain married to him.

3 Brown still has a small scar under he r eye as a result of the incident.

4 A tape recording of the 911 call was admitted into evidence . During the call, Brown asks the operator if someone can come to her home, then indicates her “baby daddy just socked [her] in [her] eye.” Brown then states he “just bust [her] in [her] . . . face and [her] face is bleeding.” When the op erator asks Brown if she needs paramedics, Brown answers, “Yeah.”4 At some point, Brown spok e with a Detective Ventigan . When he asked her who had hit her in the eye, Brown told him it ha d been Travor Davis. The detective then asked Brown whether she was “seeking pros ecution in the case” and she told the detective, “ ‘No.’ ” The detective apparently told Brown they did no t need her anyway as they had photographs of her injury. Brown in dicated that she did not wish to prosecute Davis because she was afraid of him and, si nce she had discovered he knew where she lived, she had been attempting to move. After the April 1st incident, a case was f iled against Daniels. Once Brown became aware of the matter, she went to the district attorney’s office to tell them they were prosecuting the wrong person. There, someone told her not hing could be done about it
“until the court date.” Brown again spoke with Detective Ventigan , who again told her they did not need her as they had “the pictures.” The detectiv e also told Brown he did not believe her and he was “going to go ahead and present [the case] to the D.A.’s office.” Brown indicated that, at proceedings held before the preliminary hearing, she attempted to tell the prosecutor the wrong pe rson had been charged. The prosecutor simply told Brown to “ ‘sit down’ ” and that she had “ ‘heard that before.’ ” On the day of the preliminary hearing, Brown testified “Travor Davis did it.” Brown stated Davis, not Daniels, had been the one who hit her. At trial, Brown admitted that, when she ca lled the police after the incident, she had said her “children’s father or baby’s daddy” ha d hit her. She testified she had said that
because “in the heat of the mome nt at that time [she was] pissed off, for lack of a better [term], against Mr. Daniels because [she] didn’ t think this would have happened if [they had] had a regular marriage[.]” Brown also admitted, although she and the children lived
on Sacramento Street in Altade na, Daniels was “rarely there.” Los Angeles County Deputy Sheriff Jaime Banuelos was assigned to the Altadena Station. At approximately 3:30 or 4:00 in the afternoon on April 1, 2012, Banuelos and his partner responded to a call directing them to Brown’s home on Sacramento Street.
Banuelos understood the incident involved domestic violence.5 After arriving at the address, Banuelos and his partner, Deputy Abdulfattah, spoke
with Brown. Brown “seemed to be kind of shaken up” and “looked like she . . . had been crying[.]” She also “had a gash under he r right eye.” Although Brown refused any treatment for her injury, Banuelos a nd his partner, who believed the cut was “ ‘significant,’ ” called the Fire Department’s ambulance. Banuelos asked Brown how she had gotten th e injury and she told the deputy “her husband[, Tana Daniels,] had [done] this to her, [and] that he had stru ck her with . . . his
closed left fist . . . .” When the deputy asked Brown why her husband had done that, she indicated they had been “having an argument over finances.” Banuelos asked if there was a place where he could locate Daniels and Brown gave him an a ddress on West 71st Street in Los Angeles. During their conver sation, Brown never me ntioned Travor Davis and never indicated “that she had a boyfriend who had caused the injury on her face[.]” She did, however, mention Daniels several times. Joey Ventigan is a detec tive with the Los Angeles Co unty Sheriff’s Department who, in 2012, worked out of the Altadena Station. Ventigan was the detective assigned to investigate the April 1st incident whic h occurred “between Sh alynn Brown and Tana Daniels[.]” Ventigan was assigned to the cas e on April 4, 2012 and he spoke with Brown on the telephone that day. When Ventigan as ked Brown who had caused the injury to her face, she answered, “[h]er husband, Tana Da niels.” Brown never mentioned the name
Travor Davis.
2. Procedural history

. Following a preliminary hearing, an in formation was filed on June 15, 2012 in which Daniels was charged with on e count of “corporal injury to [a] spouse/cohabitant/child’s parent ” in violation of section 273.5, subdivision (a), a felony. It was further alleged Daniels previously had been convicted of the serious felony (§ 1192.7) and the violent felo ny (§ 667.5, subd. (c)) of assa ult with a firearm (§ 245, subd. (a)(2)), requiring any sentence imposed fo r the felony alleged in count 1 be served in state prison pursuant to se ction 1170, subdivision (a)(3). In addition, the prior assault subjected Daniels to the term s of the Three Strikes law ( §§ 667, subds. (b)-(i), 1170.12,6 subds. (a)-(d)). At proceedi ngs held on June 27, 2012, Daniels entered a plea of not guilty to the charge alleged in count 1. On September 6, 2012, the matter was called for a jury trial. On that same day, the trial court impaneled a jury of 12 jurors and 2 alternates. Opening statements and the giving of evidence began the following day. After all the evidence had been presen ted, defense counsel made a motion for entry of a judgment of acquittal (§ 1118.1). The trial court, howeve r, denied the motion. Before the parties presented their argum ents, defense counsel objected to the prosecutor showing the photograph of Brown’s injury on the overhe ad monitor. Counsel argued that to show to the ju ry such a large image of the wound would be prejudicial and would serve “no other purpose than to try to influence the jury just based on the photograph.” (See Evid. Code , § 352.) The trial court denied the motion, indicating it would allow the prosecutor to “show [the picture,] then remove it.” The court commented, “It’s easier to s ee [than the photograph] and [the prosecutor] can make arguments based on it.” At 3:55 p.m. on September 7, 2012, after th e trial court had instructed the jury and the parties had presented their arguments, the jurors retired to begi n their deliberations. At 4:05 p.m., the jurors r ecessed until 9:00 a.m. the foll owing Monday, September 10,
2012. On the morning of September 10, 2012, th e jury requested that the testimony of Deputies Banuelos and Ventigan be read back to them. After the testimony had been read back, the jury resumed its deliberations. Then, at 2:03 p.m., the jury “buzzed” the trial court indicating it had reached a verdict. After defense counsel indicated, if there was a conviction, Daniels “would waive jury fo r the prior,” the trial court advised Daniels of his right to a jury trial, his right to c onfront and cross-examine witnesses against him, his right to subpoena witnesses to testify in his defense at no cost to him and his right to
remain silent. Daniels indicated he understood his rights and wished to waive them with regard to the allegation he ha d a prior serious and violent fe lony conviction. The trial court responded, “Then, if there is a convicti on, . . . there will be a court trial on that.”7 The court clerk then read the verdict, which indicated the jury had found Daniels “guilty of the crime of corporal injury to [a] spouse, a mother of hi s child, on or about April 1st, 2012, in violation of . . . section 273. 5[, subdivision] (a), a felony . . . .” After reviewing the People’s “packet,” Daniel s indicated he did not wish to have a court trial on the alleged prior conviction. Dani els waived his right to a court trial, then admitted he previously had be en convicted of assault with a firearm in violation of section 245, subdivision (a)(2). Over the People’s objection, Daniels asked the trial court for “a couple of weeks”
to take care of business before he surrendered for sentencing. 5 After reviewing Daniels’s criminal history, including his probation report, the court denied the request and
remanded Daniels. The trial court indicted Daniels’s history showed that he had committed “crimes of violence,” including the one he had just been found guilty of, and the court was “not going to take a chance on that.” Daniels was sentenced on September 12, 20 12. At those proceedings, Brown’s mother, Tracy Davenport, addressed the court a nd requested that the court show leniency toward her son-in-law. Davenport stated Da niels had been a good father, had made an effort to support his family and, at the time of this offense, had been starting a business. According to Davenport, Daniels was an up standing young man who had been like a son to her. After then hearing from both counsel, the trial court imposed the low term of two years in state prison for Daniels’s conviction of the willful infliction of corporal injury on a spouse, then doubled the term to four years pursuant to the Three Strikes law. The trial court commented, although it had been cons idering imposing the mid-term, Davenport had persuaded him the low term was appropriate. The cour t stated it had never before had “the mother [of the victim] come into co urt” to speak on behalf of a defendant.

5 Daniels had been out of custody on bail during the prior proceedings.8 The trial court awarded Daniels presenten ce custody credit for 39 days actually served and 39 days of good time/wo rk time, for a total of 78 days. 6 The court ordered Daniels to pay a $240 restitution fine (§ 1202.4, subd. (b)), a st ayed $240 parole revocation restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction a ssessment (Gov. Code, § 70373). Daniels filed a timely notice of appeal on September 12, 2012.
CONTENTIONS
After examination of the reco rd, appointed appellate coun sel filed an opening brief which raised no issues and requested this c ourt to conduct an independent review of the record. By notice filed March 20, 2013, the clerk of this court advised Daniels to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. After being granted an extension of time within which to do so, on April 25,
2013 Daniels filed a letter br ief in which he argue d several points. Initially, he asserted the panel of jurors who tried him was “unc onstitutionally incompetent.” Daniels next argued, when the court reporter read back testimony requested by the jury, she made several errors which “ma[d]e the testimony difficult to understand.” Daniels then
contended his trial counsel had been ineffective. Finally, Daniels asserted he is “not the person who[] committed this crime.” With regard to the competen cy of the jurors, Daniels re ferred to the portion of the trial transcript which reflected the trial cour t’s explanation to the prospective jurors the
nature of the crime of which Daniels had been accused. The trial court then asked Prospective Juror No. 1, “[I]f you had to do so mething as ridiculous right now as to vote, guilty or not guilty, how [wou ld] you vote?” Prospective Ju ror No. 1 responded, “I––I can’t make a call just based on that.” The trial court then asked the same question of prospective jurors 2 and 3 and they gave th e “[s]ame response.” The trial court then asked the panel, “Is there anyo ne who would have a different response than, you know, ‘I

6 On February 8, 2013, the trial cour t granted Daniels’s motion to correct his presentence custody credits to show 56 da ys actually served and 56 days of good time/work time, for a total of 112 days.9 can’t make a decision right now’? [¶] Anybody have a different response than that? [¶]
No hands.” The court then addressed Pros pective Juror No. 4 an d stated, “So, Juror No. 4, we talked about who has got the burden of proo f[,] right?” Prospective Juror No. 4 responded, “Yes.” “The prosecutor, the People there.” The following colloquy then occurred: “The court: Righ t. [¶] Prospective Juror No. 4: Right. [¶] The court: So if you have not heard evidence––[¶] Prospective Juror No. 4: Can’t make a decision without evidence. [¶] The court: That’s what most pe ople would think if they were making a decision in their everyday lives, but in a courtroom where the People have the burden of proving something beyo nd a reasonable doubt, if they have not proven it, and since you haven’t heard any evid ence at this point, your vote wo uld have to be not guilty. [¶] Everybody see that? [¶] Prospective Juror No. 4: Righ t. [¶] The court: That’s what really makes the rubber me et the road in terms of a pr esumption of innocence. You hear that all the time in movies or maybe on TV or something, but when someone says presumed innocent, that’s wh at that means. That mean s unless and until the People can prove the charge beyond a reasonable doubt, yo ur vote must be not guilty. [¶] So, Juror No. 1, how would you vote? [¶] Prospective Juror No. 1: Not guilty. [¶] The court: 2? [¶] Prospective Juror No. 2: No t guilty. [¶] The court: 3? [¶] Prospective Juror No. 3: Not guilty. [¶] Th e court: Is there anyone else who would vote somethi ng other than not guilty? [¶] I see no hands.” Based on these proceedings, it cannot be sa id the jurors who tried Daniels were “unconstitutionally incompetent.” Although th ey may not have initially understood the prosecution’s burden of proof, it was clearl y established that, after the trial court discussed it with a number of individual jurors , each of the prospective jurors understood
that in order to convict Daniels of the alle ged crime the prosecution was required to prove him guilty beyond a reasonable do ubt. A reading of the reco rd indicates, following its discussion with prospective jurors 1 through 4, when the trial court asked all of the prospective jurors if, at that point in the proceedings, th ere was anyone who would vote other than that Daniels was “not gu ilty,” the trial court saw “no hands.”10 Daniels next contended that when the c ourt reporter read back testimony requested by the jury, she made several errors wh ich “ma[d]e the testimony difficult to understand[.]” The contention is without merit. “ ‘ “It is pr esumed that official duty has been regularly performed. . . .” (Evid. Code, § 664.) This presumption applies to . . . court reporters . . . .’ ( People v. Wader (1993) 5 Cal.4th 610, 6 61.) Therefore we assume the reporter properly read [back] the testimony [requested] by the jury.” ( People v. Ayala (2000) 23 Cal.4th 225, 289.)
Daniels’s contention his trial counsel was in effective is also w ithout merit. “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective sta ndard of reasonableness under prevailing professional norms and whether the defenda nt suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine conf idence in the outcome. [Citations.]” ( People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing
as to either co mponent, the clai m must fail. ( People v. Holt (1997) 15 Cal.4th 619, 703.)
Daniels first asserts his trial counsel faile d to consider his objections to various potential jurors and allowed individuals who had indicated they wo uld not presume him
innocent to remain on th e jury. However the record, as indicated above, shows all of the potential jurors had indicated they understoo d Daniels was to be presumed innocent until the prosecutor proved otherwise beyond a r easonable doubt. Under these circumstances, it cannot be said any of the jurors accepted by defense counsel would not have presumed Daniels was innocent until the prosecutor pr oved him guilty of the alleged charge. Daniels asserts, on another occasion, his counsel became so confused he referred
to Travor Davis as “Travor Daniels.” Duri ng argument, counsel stated Brown testified
“she wouldn’t have been ch eating had she been getting the type of companionship that
she needed and that in this tit-for-tat world she came into contact with this Travor Daniels [( sic )] who she was getting things from, some m oney and other things that she alluded to, and that at some point this tit -for-tat resulted in Mr. Davis a ssaulting her, and at that point in time, she got revenge. It was her opportu nity to point the finger at Mr. Daniels.”11 Counsel continued, “The issue here is not wh ether Tana Daniels hit Shalynn Brown. It’s not whether Shalynn Brown was in jured. The issue is that Tana Daniels did not injure Shalynn Brown because the testimony that you ha ve heard in court under oath is that he was not even present at 372 East Sacram ento Street on April 1st of 2012. The complaining witness admits this under oath. She admits she lied . . . .” In view of the argument presented by counsel after he mistak enly referred to Travor Davis as Travor Daniels, it cannot be said Daniels suffered any prejudice. Counsel’s point was that
Brown had lied under oa th and he clearly made that point. Daniels next argues, without consulting hi m, counsel waived his presence for any read back of testimony. Wh ile the record indicates counsel initially stated he was waiving Daniels’s presence, it also indicates counsel then stated he was going to discuss
the matter with Daniels. From a further read ing of the record, it ca n be inferred defense
counsel and Daniels had such a discussion. When the jury then requested certain testimony to be read back to them, the pr osecutor, defense counsel and Daniels were present. Finally, Daniels contends his trial counse l was ineffective because he failed to accurately determine the number of presente nce custody credits to which Daniels was entitled. This, however, was a simple clerical error which was easi ly corrected when it was brought to the attention of the trial c ourt. Under these circumstances, Daniels suffered no prejudice from the error. (See People v. Holt, supra, 15 Cal.4th at p. 703.)
Daniels final contention is that he was co nvicted of a crime he did not commit. We note, “[w]hen a jury’s finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire re cord, there is any substantial evidence,
contradicted or uncontradicted , which will support the finding of fact, and when two or more inferences can reasonably be deduced fr om the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury, believing other evidence or drawing other inferences, might have come to a contrary conclusion.” ( People v. Mendonsa (1982) 137 Cal.App.3d 888, 891, italics in original,12 citing People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Here, a review of the evidence presented supports the jury’s finding Daniels was guilty of willfully inflicting corporal injury on Brown. Although Brown’s test imony was at times inconsistent, the testimony
of the two law enforcement officers and the ta pe recording of the 911 call were not. All
three indicated Brown had stated Daniels wa s the individual who had attacked her. The evidence of Daniels’s guilt was substantial.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. ( Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.