People v. Miles CA3

Filed 2/9/15 P. v. Miles CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C076125

Plaintiff and Respondent, (Super. Ct. No. CRF132229)

v.

TERRANCE ANTHONY MILES,

Defendant and Appellant.

A jury found Terrance Anthony Miles guilty of assaulting V. (the victim) with a deadly weapon, causing her great bodily injury. The evidence in the People’s case-in- chief was that a police officer saw defendant hit the victim in the head with a stick near the doorway of a motel in West Sacramento after the victim and defendant had had a conversation. The victim’s husband was there and tried to provide her medical care. The defense case, as provided by defendant’s testimony, was that the victim called him “ ‘the ‘N’ word” and raised a closed fist toward him. When he blocked it, she tried to hit him with her other hand. The victim continued coming toward him, so defendant reached for

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his “security stick” on the side of his bed and told her to get out of his apartment now. She called him the “N” word again and made two fists, “taking a fighting stance,” and “jabbed at [him].” Then defendant hit her in the head with his stick. In rebuttal, the victim’s husband testified that he did not see the victim try to hit or physically contact defendant and did not hear the victim utter any racial epithets. Defendant and the victim did “g[e]t into a verbal thing” “but finally [defendant] got back in his room, and for some reason, he came out of the door with a club and hit her in the back of the head.” In 2005, the husband was convicted of corporal injury to the victim. On appeal, defendant contends: (1) his counsel was ineffective for failing to object to the testimony of the victim’s husband as his testimony was not a proper subject for rebuttal; and (2) the trial court erred in excluding two other prior convictions of the victim’s husband. We affirm the judgment, concluding: (1) the rebuttal testimony of the victim’s husband was proper rebuttal against defendant’s claim of self-defense; and (2) the court did not abuse its discretion in excluding the husband’s prior convictions because they were remote, occurring in 1968 and 1976. DISCUSSION I Trial Counsel Was Not Ineffective For Failing To Object To The Husband’s Testimony Rebutting Defendant’s Claim Of Self-Defense Defendant contends his counsel was ineffective for failing to object to the testimony of the victim’s husband as his testimony should have been presented in the People’s case-in-chief. We disagree. “[P]roper rebuttal evidence . . . is . . . evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” (People v. Carter (1957) 48 Cal.2d 737, 753-754.) Here, simply by pleading guilty, defendant did not assert a claim of self-defense. It was only