California Court of Appeal Dec 4, 2014 No. E059627Unpublished
Filed 12/4/14 P. v. Frank 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E059627
v. (Super.Ct.No. FVI1300674)
CHRISTOPHER JAMES FRANK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John B. Gibson and
Jules E. Fleuret, Judges. Affirmed.
Christopher James Frank, in pro. per.; and Lizabeth Weis, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
STATEMENT OF THE CASE
An information charged defendant and appellant Christopher James Frank with
multiple offenses stemming from an incident on March 3, 2013, at his house, in which his
1
girlfriend (the victim) was assaulted, as follows: (1) kidnapping under Penal Code1
to impeach witnesses; failure to present good character evidence; failure to investigate
defendant’s mental state; failure to advise defendant properly prior to defendant
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admitting his prior convictions; failure to file a motion for new trial; failure to inform him
of his right to testify on his own behalf.
We have reviewed the record and find that defense counsel actively and
conscientiously represented defendant throughout the trial court proceedings. Counsel
examined and cross-examined the witnesses, and made succinct and persuasive
arguments to the trial court. When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.) Here, we need not determine
if defense counsel’s actions fell below an objective standard of reasonableness because
defendant cannot demonstrate that counsel’s alleged deficient representation prejudiced
him, i.e., there is a reasonable probability that, but for counsel’s purported failings,
defendant would have received a more favorable result. (People v. Dennis, supra, 17
Cal.4th at pp. 540-541; Strickland v. Washington, supra, 466 U.S. at p. 687.) Defendant,
in support of his argument that he was prejudiced, simply states that he was prejudiced
because the trial resulted “in a guilty verdict.” This is insufficient. In fact, as discussed
in detail above, the evidence against defendant was overwhelming and corroborated by
the victim, the testimony of defendant’s two neighbors, and the evidence found at the
crime scene. After reviewing the evidence and defendant’s argument, we cannot say any
of the purported actions by counsel would have changed the outcome of this case. There
was no prejudice.
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As for appellate counsel, defendant essentially argues that counsel provided IAC
for filing a Wende brief instead of presenting legal and sufficiency of the evidence issues
on appeal. Defendant’s argument is without merit because under the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have to independently review the record for potential
error. Simply filing a Wende brief does not deem a counsel’s performance as ineffective.
As to his prosecutorial misconduct argument, it appears that defendant claims
misconduct based on his belief that the prosecution manipulated the testimony of the
victim and witnesses “to avoid eliciting any exculpatory information[.]” Defendant
claims that the mental health issues of both defendant and the victim should have been
brought forth during the trial. For example, defendant states: “In this case, the jury was
incapacitated from performing that function by the prosecutor’s failure to inform them of
the evidence of victim’s prior mental health issues, her use of prescription drug addiction
[sic], victim’s drug use immediately prior and after the said incident, as well as her
lifelong history of drug and alcohol abuse.” Moreover, defendant argues prosecutorial
misconduct because counsel allegedly failed to “comply with constitutionally mandated
discovery.” In support, defendant seems to be arguing misconduct because the court
noted that “‘we either have a victim who is lying to you or a victim who has very poor
memory skills.’” Defendant goes on to state that “[w]hen the prosecution fails to correct
testimony of a prosecution witness that it knows or should know is false and misleading,
reversal is required if there is any reasonable likelihood the false testimony could have
affected the judgment of the jury. [Citation.]”
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“Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless
the defendant makes a timely objection and asks the trial court to admonish the jury to
disregard the prosecutor’s improper remarks. [Citation.] In the absence of an objection,
‘the point is reviewable only if an admonition would not have cured the harm caused by
the misconduct.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176.) In light of
defendant’s IAC claim, however, we hereby address defendant’s claim of prosecutorial
misconduct.
“‘A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it “infects the trial with such unfairness as to make the
conviction a denial of due process.” [Citations.] In other words, the misconduct must be
“of sufficient significance to result in the denial of the defendant’s right to a fair trial.”
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves “the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.” [Citations.]’ [Citations.]”
(People v. Clark (2011) 52 Cal.4th 856, 960.) Here, defendant has failed to demonstrate
how the prosecutor’s alleged misconduct violated his right to fair trial. The prosecutor
had the right to examine the victim—there was no evidence that the victim was lying
under oath. Moreover, defendant had an opportunity to cross-examine the victim and
question her veracity. As to the discovery, the prosecutor informed the court that she did
not have any knowledge about the belt recording until the deputy mentioned it in court.
The trial court—the trier of fact—believed the prosecutor. No prosecutorial misconduct
is demonstrated.
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Defendant further claims prosecutorial misconduct because “[t]he prosecutor
unlawfully and unconstitutionally stated her personal opinion over, (12), a dozen times in
her closing argument and rebuttal and these remarks so infected the trial with unfairness
as to make the resulting conviction a denial of due process and a fair trial.” Defendant
went on to quote another part of the prosecutor’s closing statement wherein she stated:
“‘So in this case I think clearly the defendant owned, possessed or had under his custody
and control ammunition in all three instances. Okay?’”
Defendant then claims that the trial court admonished the prosecutor by stating:
“I’ve noticed a couple of times, [prosecutor], you’ve stated what your personal beliefs
are, and that’s improper.” Defendant, however, takes this sentence out of context.
Contrary to defendant’s argument, the trial court stated: “Intent is something that is
deduced from physical evidence, actions, statements. We don’t have a way to
empirically find or judge intent. As long as [prosecutor] is drawing her conclusions
based on the testimony and evidence in this case, then I think that’s something that she’s
free to do. If she’s drawing her conclusion based on things that are outside of the
evidence— [¶] I’ve noticed a couple of times, [prosecutor], you’ve stated what your
personal beliefs are, and that’s improper. [¶] But to say that based on the evidence in
this case I think or I believe or I believe the evidence shows, I think that’s totally
permissible. And she hasn’t gone beyond what the evidence has shown. Certainly you’re
free to argue different conclusions based on the same evidence.”
We agree with the trial court that the prosecutor did not commit misconduct in her
closing argument. As pointed out above by the trial court, this was a reasonable
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inference to draw from the evidence presented during trial—which is acceptable to argue
during closing argument.
Defendant also contends that there was “improper application of ‘second striker’
enhancement.” In support, defendant contends that his 2003 conviction under section
245, subdivision (a)(1) does not qualify as a strike. Defendant, however, admitted that on
December 5, 2003, he suffered a felony conviction for assault with a deadly weapon, as
alleged in the information. The information alleged that this prior conviction is a serious
or violent felony under the Three Strikes law. Defendant cannot now on appeal claim
that his prior conviction does not qualify as a strike.
Lastly, defendant argues that he was never read his rights under Miranda v.
Arizona, supra, 384 U.S. 436. Hence, his “incriminating statements were obtained in
violation of Miranda and their admission at [defendant’s] trial violated his clearly
established rights under the Fifth and Fourteenth Amendments.” The trial court
addressed this issue. When defense counsel asked that the court exclude statements made
by defendant during his interview, the court stated: “Okay. The uncontradicted evidence
in this hearing is that Miranda warnings were read. Certainly there were questions asked
by defense that suggested that they weren’t. But those were questions, and the answer to
those questions was that the rights were read. So with the state of the evidence that’s
before me, the motion is denied. I believe that the People have carried their burden of
proof. And I will allow statements to come in.” We agree with the trial court’s
assessment of this issue.
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We have examined the entire record and are satisfied that no arguable issues exist,
and that defendant has, by virtue of appellate counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate review
of the judgment entered against him in this case. (People v. Kelly, supra, 40 Cal.4th
106.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.
24
AI Brief
AI-generated · verify before citing
Holding. The appellate court affirmed the defendant's conviction and sentence after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues.
Issues
Whether the defendant received ineffective assistance of counsel.
Whether there was prosecutorial misconduct.
Whether sentencing under the Three Strikes law violated the defendant's due process rights.