California Court of Appeal Jan 9, 2025 No. E083077Unpublished
Filed 1/9/25 P. v. Clay CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083077
v. (Super.Ct.No. INF2300767)
DONTAE EARL CLAY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jerry C. Yang, Judge.
Affirmed.
Laura Vavakin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and
Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Dontae Earl Clay guilty of several offenses
committed during a domestic violence incident, even though at trial the victims, his wife
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and teenage stepdaughter, recanted their statements to police. He argues his trial counsel
was ineffective for failing to impeach his wife with evidence of her criminal record. We
decline to consider his ineffective assistance claim on direct appeal. That is his only
On February 24, 2023, Clay’s wife told 911 dispatch that Clay had kicked a hole
in a door at their home, pushed her to the ground, threatened to beat her and strangle her,
choked her with a phone charger cord, and struck both her and her daughter (his
stepdaughter) with the cord. She and her daughter later gave police officers roughly the
same account. Both had visible, minor injuries.
Clay was arrested and charged with inflicting corporal injury on a spouse (Pen. 1 Code , § 273.5, subd (a), count 1), making a criminal threat (§ 422, count 2),
misdemeanor child abuse (§ 273a, subd. (b), count 3) and misdemeanor infliction of
physical punishment on a child (§ 273d, subd. (a), count 4). The People also alleged Clay
had a prior strike, a 2002 burglary conviction, and alleged two aggravating factors.
During trial, the court considered whether the parties would be permitted to
impeach Clay’s wife with her 2016 conviction for violating section 273d, a child abuse
offense that was originally a felony but reduced to a misdemeanor when her probation
was terminated early. Both parties asked to be allowed to impeach her with the
conviction, but the prosecution asked the court to “sanitize the conviction such that it’s
1 Undesignated statutory references are to the Penal Code.
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only referred to as a misdemeanor crime of moral turpitude,” while the defense wanted to
“be able to refer to the specific description of the offense.” The court weighed the
probative value of the evidence against its potential for undue prejudice under section
352, and ruled in favor of the prosecution. That ruling is not challenged here.
At trial, Clay’s wife and his stepdaughter were called as prosecution witnesses, but
both recanted their statements to police. They denied that Clay fought with his wife and
attributed their injuries to a fight between Clay’s wife and an unnamed “female.” Clay’s
wife explained she had spent the previous night at her mother’s house and returned to
find her husband, her brother, and the female, a friend of her brother, in the back yard.
She was upset to find Clay “laughing and enjoying [himself] with a female”, and she “got
in a little scuffle with her.” Her daughter was scraped by a tree branch while running to
help.
During Clay’s wife’s testimony, neither the prosecution nor the defense asked her
about her 2016 conviction.
Later in the prosecution’s case-in-chief, outside the presence of the jury, the
parties and the court discussed several “housekeeping” matters, including jury
instructions. The prosecutor argued a jury instruction about Clay’s wife’s 2016
conviction, previously requested by the defense, was not “appropriate at this point”
because the conviction had not “come out in evidence.” Defense counsel then expressed
his understanding that there was a stipulation that needed to be read to the jury about the
prior conviction. The court and the prosecutor agreed there had been no on-record
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stipulation to read anything to the jury, and the prosecutor represented there had been no
off-the-record discussions between counsel on the issue. Defense counsel responded: “I
thought—that is how it’s done in different courthouses. If there is something you didn’t
want to ask...”, but then dropped the issue without completing his thought. The parties
and the court then agreed the proposed instruction about the 2016 conviction should not
be given to the jury if no evidence of the conviction was admitted.
The conviction was not raised in the remainder of the prosecution’s case in chief,
and the defense rested without presenting any evidence.
The jury found Clay guilty on counts 2 and 3 as charged, and found him guilty of
the lesser included offenses of count 1 (§ 243, subd. (e)(1), simple battery on a spouse)
and count 4 (§ 242, simple battery). The trial court found true the alleged aggravating
factors and prior strike allegation and sentenced Clay to a total term of 2 years, 8 months.
DISCUSSION
Clay argues his trial counsel provided ineffective assistance by failing to impeach
his wife with her 2016 conviction. We decline to decide the merits of this argument.
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009 (Mai).) On direct appeal, a conviction will be reversed for
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ineffective assistance “only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.)
The record does not definitively establish why Clay’s trial counsel did not
impeach Clay’s wife with her 2016 conviction. According to Clay, the record shows his
lawyer did not do so because he mistakenly believed the jury would be read a stipulation
about the conviction. That misunderstanding came to light, however, while the
prosecution was still completing its case in chief. There does not appear to have been
any reason the defense could not have called Clay’s wife to testify again, as part of the
defense’s case. The record does not disclose why defense counsel did not do so.
It is conceivable that Clay is correct that his counsel subjectively lacked a good
reason to refrain from impeaching Clay’s wife with her 2016 conviction. Perhaps
counsel simply failed to consider the possibility of calling her during the defense case, or
decided without basis that would not be permitted.
But it is also possible counsel had sound reasons not to impeach Clay’s wife. Her
trial testimony, though a prosecution witness, turned out to be favorable to the defense.
She recanted her statements to police and denied Clay committed any of the acts giving
rise to his charges. Defense counsel could have reasonably decided it would be best for
the defense not to impeach her, in the hope the jury would credit her trial testimony over
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her earlier statements to police. Moreover, recalling her as a witness, or using the
conviction in her cross-examination, would have given the prosecution the ability to
question her about the same thing, which could diminish the value of her favorable
testimony. Of course, as Clay argues on appeal, “[t]rial counsel could have used [her]
crime of moral turpitude to challenge her statement to the police while still maintaining
that her trial testimony was credible.” Whether that would have been the wisest course of
action for the defense, however, is at least debatable, if not doubtful.
Thus, the record does not affirmatively disclose defense counsel had no rational
purpose for failing to impeach Clay’s wife with her 2016 conviction, that counsel was
asked for a reason and failed to provide one, or that there could be no satisfactory
explanation. (See Mai, supra, 57 Cal.4th at p. 1009.) We therefore decline to decide the
merits of Clay’s ineffective assistance claim here. The issue is better considered in a
habeas corpus proceeding with a record developed for it that includes counsel’s
testimony. As this is the only issue Clay has raised here, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
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CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court declined to address the defendant's ineffective assistance of counsel claim on direct appeal because the record did not affirmatively demonstrate the absence of a rational tactical purpose for the challenged omission.
Issues
Whether trial counsel provided ineffective assistance by failing to impeach a witness with her prior criminal conviction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We decline to consider his ineffective assistance claim on direct appeal.”
“The record does not affirmatively disclose defense counsel had no rational purpose for failing to impeach Clay’s wife with her 2016 conviction”
“We therefore decline to decide the merits of Clay’s ineffective assistance claim here.”