Filed 4/14/14 P. v. Hicks CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

ANISHA A. HICKS,
Defendant and Appellant. B247303
(Los Angeles County Super. Ct. No. BA378352)

APPEAL from judgment of the Superior Court of Los Angeles County, Dennis J.
Landin , Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck , under appointment of the Court of Appeal, for Defendant and Appellant

. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, L inda C. Johnson and Ryan M.
Smith , Dep uty Attorney s General, for Respondent and Plaintiff

.2

Defendant A n isha A. Hicks appeals from her conviction by jury trial of vehicular manslaughter without gross negligence (Pen

. Code
, § 191.5, subd. ( b )), driving under the influence of alcohol (Veh

. Code
, § 23153, subd. ( a ) ) and drivin g with a blood alcohol
level of .08 per cent or greater (Veh

. Code, § 23153, subd. (b)), and, with respect to the Vehicle Code violations, the jury’s true finding that she caused great bodily injury (Pen

. Code , § 12022.7, su bd. ( a ) ). Two issues are raised on appeal: that trial counsel for defendant rendered ineffective assistance by failing to object to bad character evidence elicited by the prosecutor and, in a related argument, that the trial court erred in refusing
to al low defendant to present good character evidence in rebuttal. We find no basis for reversal, and affirm the judgment of conviction.

FACTUAL AND PROCEDURAL SUMMARY We review the record under familiar appellate principles

. A s to the substantiality
of th e evidence, we review it in the light most favorable to the judgment, and presume the existence of every fact the trier of fact could reasonabl y deduce from the evidence. ( Jackson v. Virginia (1979) 443 U.S. 307; People v. Lewis (1990) 50 Cal.3d 262; and People v. Johnson (1980) 26 Cal.3d 5 5 7, 578.) That is not a difficult task in this case as there is little disagreement about the facts. Sometime in the early morning of September 11, 2010
, defendant was driving her car northbound on the 101 Freeway. S he drove onto the Vermont off ramp. At the time she was driving at 50 miles per hour. The car veered off the ramp onto a steep slope. The slope was covered with vegetation, including trees and bushes. A homeless man, Adon Rodriguez, had erected a shelt er on the slope and apparently was resting there
when he was struck by defendant’s vehicle. He rolled some 30 feet down the slope. The

car came to a stop when it slammed into a tree. Defendant and her passenger exited the
car and walked off the s lope to a nearby gas station. At the station defendant called her automobile association asking that a tow truck be sent to the location of her car since it was stuck against a tree. After waiting about an hour, defendant called 911 and said she needed help. As ked if she needed the police, she answered that she did not. She also3

said that there had not been an accident but that her vehicle was stuck at the tree. Her companion got a ride home and defendant walked back to the scene of the collision. By
that tim e, about 3:30 a

. m

. , fire equipment and personnel had arrived and were hosing
down the vehicle, which was still smoking. California Highway Patrol officers also arrived. Defendant identified her vehicle
and said that it had veered off the road onto the s lope. She showed signs of being under
the influence : her breath smelled of alcohol, her eyes were watery, her speech was slurred, and she was unsteady on her feet. She explained that she had turned onto the o ff ramp, at 50 miles per hour, when she lost control of the car. She said that her brakes had
failed. Defendant acknowledged that she had consumed alcohol, but only a single mixed cocktail, which she had drunk at about 9: 0 0 the previous evening. She had been at the
Nokia theater

. She also had eat en some time before the cocktail. Field sobriety tests were taken. They indicated that defendant had a blood alcohol level of .154 per cent (at
4:22 a

. m

. ), followed by a reading of .144 per cent two minutes later. She was then arrested for driving under t he influence of alcohol. Inside the patrol
vehicle an officer informed her that a person had been killed. Defendant responded, “Is
he dead?” Informed that he was, she asked, “Well, is he dead dead?” Informed again that he was, she remained quiet for th e rest of the ride to the police station. Blood was
taken there , at 6:11 in the morning ; it revealed a blood alcohol reading of .13 per cent. The accident scene showed a furrow cut into the ground from the point where the vehicle left the off ramp, down the sl ope, to the tree against which it came to rest and caught on fire. A post

- mortem examination showed that the victim’s chest cavit y had
been crushed in a mann er consistent with having been rolled over by a car. Defendant presented a defense, but d id not testify. An examination of the vehicle’s braking system indicated that the master cylinder and a brake line hose had melted and therefore could not be examined, and that the rest of the brake system was in good working order.4

Defendant was sentenc ed to two years in prison (the middle term) for vehicular manslaughter without gross negligence. Sentence was stayed for the Vehicle Code offenses and the great bodily injury enhancement. She filed a timely notice of appeal.

DISCUSSION
I Defendant’s pr incipal argument on appeal is prejudice resulting from ineffectiveness of her trial attorney. The claim is based on the allegation that the prosecutor elicited evidence that defendant showed no remorse when questioned at the accident scene. Three passage s are cited

. In the first, one of the responding Highway Patrol officer s was asked whether,
after he informed defendant that someone had died, “Did she appear to show any
remorse?” The answer was, “At the time, no.” In the second, after he recounted
de fendant’s repeated question w hether the victim was “dead, dead
, ” t he officer was
asked: “Did she appear to show any remorse?” The answer was
, “No.” In the third, th e officer was asked on cross

- examination by defense counsel , “It’s your testimony Ms.
Hic ks at no time showed any compassion?”, to which the response was
, “Correct.” The
officer was next asked whether he ever saw defendant “ break down after hearing somebody died?”, to which he answered, “No, not that I recall. Definitely not in the patrol ve hicle.” There was no objection, motion to strike, or request for a jury admonition as to any of these questions or responses. On appeal, defendant argues that the failure to object or seek some other kind of relief deprived her of the effective represen tation by
counsel to which she is entitled. The point is raised on both statutory and constitutional grounds, including claims of federal constitutional error. 1

1 Plaintiff argues that failure to raise the federal constitutional ground forfeits that claim on appeal. We do not agree that the claim is forfeited. (See People v. Dement (2011) 53 Cal.4th 1, 32, fn. 6; People v. Boyer (2006 ) 38 Cal.4th 412, 441, fn. 17.)5

A claim of ineffective representation based on a failure to object is cognizable on appeal. But the bar is high. As reiterated by our Supreme Court, “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. 4 th 264, 266.) Thus, it must appear “that the omission or omissions were not attributable to a tactical decision which a reasonably competent, experienced crimin al defense attorney would make. [Citation.] ” ( People v. Williams (1988) 44 C al

. 3d 883,
936 .) The principle of deferential scrutiny on appeal is grounded, in part, on the danger
of second

- guessing where claims of ineffective assistance of counsel are made. ‘ “[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasona ble.’” ( People v.
Ledesma (1987) 43 Cal.3d 171, 216 ( Ledesma ) , quoting from the United States Supreme Court decision in the leading case in the field, Stickland v. Washington (1984) 4 6 6 U.S. 668, 689 , herea f

ter, Strickland .) And, as Ledesma also instruct s, second

- guessing the quality of legal representation at trial could adversely affect the quality of trial counsel and the functioning of the criminal justice system, as trial attorneys may be tempted to exercise discretion principally to defend themselve s against the client s’ claim s of
ineffective assistance after trial. ( Ledesma, at p. 216.) More particularly, in reviewing a claim of ineffective assistance of counsel, reviewing courts defer to the attorney’s reasonable tactical decisions; indeed, “the re is ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citations.] ’” ( People v. Jones (2003) 29 Cal.4th 1229, 1254.) Tactical decisions by trial counsel generally are not deemed reversible, and the attorney ’ s decision

- making must be evaluated in the context of the available facts

. “[ I ]n the usual case, where a counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assi stance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.] ” ( Id.,6

at p. 1254. ) And “[f]ailure to object rarely constitutes constitutionally ineffective legal representation. [Citation.] ” ( Peopl e v. Boyette (2002) 29 Cal.4th 3 81 , 42 4

. )
Strickland also holds that a reviewing court may choose to examine the issue of resulting prejudice before or even without reaching the issue of competent representation. Indeed, it may be preferable to do so. ( Strickland
, supra, at 4 6 6 U.S. 697

. ) California follows the same approach. (See In re Cox (2003) 30 Cal.4th 974, 1019; People v.
Fosselman (1983) 3 3 Cal.3d 572, 583

. ) Following that guidance, we discuss the issue of error only briefly. Defendant

argue s there is no justifiable basis for trial counsel not to have raised some kind of objection to the prosecutor’s questions about her lack of remorse. But it is not at all clear
that the prosecution’s questions sought to elicit irrelevant evidence. They we re asked in
the context of defen dant’s behavior at the scene. There was no showing that she even knew that her car had struck someone during the initial field questioning. She was concerned about having her car towed away. And this ques t ion bore on the extent to which she was intoxicated, which in turn informed the lik e liho od that she had driven
under the influence of alcohol

. At that point she had nothing beyond her own property
and inconvenience to be remorseful about. Once informed that someone had been killed in the accident, she asked a question to verify that was really so and, on being informed that it was, said nothing more. Second, trial counsel may well have made the not uncommon tactical decision to do nothing that might invite closer jury s crutiny toward defendant’s behavior, such as an objection or even an admonition might have done. As we shall discuss, the situation might have been different depending on how, if at all, the prosecutor chose to treat the exchange in summation. But she ne ver raised it again. Of course, counsel could have asked for a sidebar, some sort of pinpoint jury instruction, admonition, or done something else. Based on the record we have, we cannot say that the decision of defense counsel not to object was so defici ent, if deficient at all, as to deprive defendant of her constitutional right to effective assistance.7

Thus, the claim of ineffective representation fails on the first prong of the inquiry : insufficient representation was not shown. But even if we were to conclude that it succeeded, no prejudice has been shown. The burden of proving resulting prejudice from ineffective assistance of counsel is on the defendant asserting that claim, and the burden is proof by a p reponderance of the
evidence. To prevail, the defendant must demonstrate that trial counsel’s representation fell below an objective standard of reasonableness . A reasonable probability is one that is sufficient to undermine confidence in the outcome. ( People v. Weaver (2001)
26 Cal.4th 876, 92 and cases cited.) Here, the showing is far short of that standard. First, the evidence of guilt was strong. While defendant admitted having only a single drink hours before the accident,
her blood alcohol level belied the claim. It was elevated far abo ve the standard of .08 percent . She was unsteady, her speech was slurred, her eyes watery, and her breath
smelled of alcohol. This was her condition when interviewed more than an hour after the accident (we know that because she said she had been waiting for over an hour for the tow truck to appear) . The decedent was hit when defendant’s car exited onto an off ramp at 50 miles per hour. It left a path of debris from the off ramp curb to the shelter where the homeless man was resting, and on to the tree into which it collided and burned. The claim that her brakes had suddenly failed was not credible and, understandably, it was not
credited. The braking system was inspected and, except where it had melted due to the
collision and fire , showed no sign of being out of order. A review of the record demonstrates that trial counsel did what he could with what he had to work with, but the jury was not persuaded. Against this w e have the responses of California Highway Patrol officers under questioning that defendant did not demonstrate remorse. That is hardly surprising. As we have discussed, these answers were in the context of her reaction when she returned to the scene of the accident and, so far as the evidence shows, she did not know that anyone
had b een injured, let alone killed.8

The calculus of possible prejudice might be different if, in opening or closing summation, the prosecutor had tried to capitalize on these responses, to portray defendant as a remorseless, callous individual. (See People v. Guiton (1993) 4 Cal.4th 1116 [where prosecutor urges conviction on two theories, only one of which is supported by substantial evidence, error in the conviction is not reversible unless prosecutor argued the invalid ground to the jury ].) Here, l ack of re morse was not mentioned at all by the prosecutor. Defense counsel referred to i t in argument only obliquely. Referring to the fact that defendant had called 911 for assistance, an act which, counsel argued, would
make no sense if one did not know someone had been killed, he argued “Who calls 911 if you’re asking for triple A. You call triple A. If she’s this evil person with no remorse, why does sh e call 911? Let’s use common sense and logic here.” There is no basis to conclude that, if error occurre d by the prosecut or asking about remorse or by defense counsel not objecting, the outcome of the case would have been
different without the error

. The error, if there was one, was harmless under any standard.
II
In her case

- in

- chief, defendant sought to present testimony of her father about the condition of the car defendant was driving (w hich he had given to her), and a bout her good character, to rebut “her supposed lack of remorse and claimed propensity for lying .” Her attorney argued that the prosecut or’s evidence had painted her as “some kind of person that has no remorse for what happened here

. . . [T]hey have essentially put her bad character into evidence.” Counsel argued that her father would testify that she was suicidal, had lost weight and ha d trouble sleeping
, ” which would rebut the prosecutor’s allegations “that she’s somehow not remorseful.” The prosecutor objected, arguing that she had done no such thing. She argued that character is admissible only if relevant to the charge, and in this case “the fact that Ms. Hicks is college educated and a nice person and the other testimony that counsel would seek to elicit from Mr. Hicks is nothing more than testimony designed to evoke sympathy from the jury[,] which is impermissible.”
The court ru led that it would allow the father to testify about the car, but not about defendant’s character because her character was not relevant. Defendant’s attorney9

rejoined that defendant’s sister had testified about their relationship, and that was allowed

ove r objection. The father’s testimony, counsel argued, was no different. The court responded that this would be true if defendant testified. At that point defendant’s counsel stated that he “wasn’t offering her college background to suggest that, because she’s college educated, she’s honest. That would be
character. What I’m s aying is that the jury should be allowed to hear

— whether she takes the stand or whether Mr. Hicks takes the stand, a jury is entitled to learn some background just like they would learn any background on any other witness. So the analysis of whether or not Mr. Hicks could testify as to her honesty and veracity I understand is not coming in as to character. I was asking the court to allow Mr. Hicks to testify as to her background, not for the purposes of character, but just so the jury has an idea of who she is, and that could be established not only if she testifies but any witness with knowledge. Obviously a father would have knowledge of his daughter’s educational background.” The court excluded this proffer as irrelevant. First, the statement of defense counsel disavowed any purpose of seeking to present the father’s testimony on character. That effectively waived the argument that
defendant was entitl ed to present such testim ony. Defendant’s college education and

“ background” had nothing to do with the case. Beyond this, the purpose previously espoused by defense counsel was that the evidence would go to rebut the implied claim that defendant was not remorseful. As the
tri al court pointed out when the issue was first raised, the testimony from the Highway Patrol officers was about whether she was remorseful at the time of their encounter, not
whether she was remorseful at a later time. As the trial court pointed out, the s ituation would have been different if defendant had testified at trial (See Evid

. Code, § 786 )

. But she did not, and the evidence was properly excluded under Evidence Code, section 1101. We also note that the facts, if they are the facts, that defendant had indicated remorse in the days and weeks following the accident and had lost sleep and was even suicidal are more readily explained by her facing by then, felony charges and a possible prison term. Except, perhaps, for a hardened criminal, that might w ell cause anyone to10

lose sleep and suffer anxiety. While neither side n or the court appears to have expressly argued the application of Evidence Code section 352 to the facts presented here, the concept embodied in that statute bears on whether excluding the proffered evidence, if error at all, was harmless: t he probative value of the evidence was minimal at best.
We find no abuse of discretion in the trial court’s rulings no r harm or error in its
exclu sion of the proffered evidence.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.