P. v. Cundiff

Filed 8/2/06 P. v. Cundiff CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ronald S. Coen, Judge. Affirmed.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Ryan Cundiff was convicted, following a jury trial, of one count of assault with a knife by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1). The jury found true the allegation that appellant personally inflicted great bodily injury in the commission of the offense within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to a total of six years in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in refusing to dismiss a juror, in excluding certain evidence and in restricting his cross-examination of a witness. We affirm the judgment of conviction.

Facts

On February 28, 2004, Rachel White celebrated her 21st birthday at a party at the "Plaza" in Santa Clarita. White invited appellant and his twin brother Aaron. Among the guests were Margeaux Duclos, Yusuf Faquir, Amal Yacoub and Christopher Barton.

At some point during the party, appellant pulled a knife on Daniel Young, a party guest, while the two men were in the bathroom. Young told White about the incident.

Near the end of the party, as people were leaving, appellant grabbed Duclos's rear end. Faquir told appellant that he should apologize. Appellant did so. Duclos, Faquir and Yacoub then continued walking. Appellant walked behind them. Yacoub and Duclos looked back at appellant and saw that he had a knife in his hand. They told White that appellant had harassed them and followed them with a knife.

White, Yacoub and Duclos told security guards about appellant's knife. A guard told appellant to leave.

As people from the Plaza were going to their cars, a fight broke out in the parking lot. Barton tried to break up the fight, which involved his friends. A few minutes later, Barton saw appellant and another man with knives. Barton told appellant to leave. Appellant appeared to bend down to get into his car. A woman was in the driver's seat with the car running. Appellant then reached over and "backhanded" Barton with a knife. Barton testified at trial that he did not threaten appellant in anyway, and did not have any weapons.

White saw some men fighting in the parking lot, then saw Barton standing between two cars, telling people to leave. She saw appellant appear to punch Barton in the face. Barton ran toward White with blood coming from his face. Appellant got into the car and left.

Barton was taken to a hospital by ambulance and received a large number of stitches for the cut to his face. At the time of trial he had a six inch scar on his face.

On March 4, 2004, Los Angeles County Deputy Sheriff Juan Carillo arrested appellant and searched his bedroom. Five knives were discovered in the bedroom.

Detective John Gill interviewed appellant the day he was arrested. Appellant told the detective that he was intoxicated at the party. He said that Barton had asked him to leave the parking lot. No one had physically assaulted him or verbally threatened him. Someone had sprayed mace at him, however, and he believed that it was Barton, or someone with him. Appellant admitted that he cut Barton. He denied that any of the knives found in his bedroom had been used to cut Barton.

Appellant testified in his own behalf at trial. He admitted that he had a knife at the party, but denied that he had displayed it. He denied grabbing anyone's rear end. He denied being told to leave by security. He and his brother left because it was getting late.

According to appellant, as he, his brother Aaron, and Lucas Cattrell were leaving the party, Barton and two friends said "F you" to them and challenged them to a fight. Appellant felt threatened. He told the men that he did not want any problems. Aaron and Catrell got into the car. Appellant started to get into the car when Barton or one of his friends started pepper spraying. Appellant was hit in the back and received a wound there. Appellant opened his knife and cut Barton. Aaron pulled appellant into the car because the men with Barton were hitting appellant and trying to pull him out of the car. Appellant told Detective Gill about the attack.

One of the five knives found in appellant's room belonged to his father. The others were used for art and cutting cardboard. The knife which appellant carried on February 28 was one he used in his job. Appellant kept his clothing from the night of the incident. His shirt had a hole and blood stains in the back.

Aaron also testified at trial, and gave the same account of the incident as did his brother. His testimony about the knives and clothing was the same as well.

Detective Todd Weber testified in rebuttal that he was present during Detective Gill's interview of appellant. Detective Todd gave virtually the same account of the interview as Detective Gill. Todd testified that appellant said that Barton did not attempt to punch, hit or verbally threaten him. Appellant said that Barton was standing too close to him, and he felt threatened. Appellant also said that he was sprayed with mace and that he believed that Barton or one of his friends did it. Appellant admitted he intended to cut Barton.

Detective Weber also testified that he was present during Detective Gill's interview with Aaron, and that Aaron did not indicate that punches were thrown or that there was a challenge to fight.

Discussion

At the close of the People's case, Juror No. 2 sent the court a note stating: "I personally know the witness John Gill." Following the court's questioning of Juror No. 2 on this matter, appellant moved to dismiss the juror. He contends that the trial court abused its discretion in denying this motion.

"[P]ursuant to section 1089 the trial court may discharge a juror who 'becomes ill, or upon other good cause shown to the court is found to be unable to perform his [or her] duty,' and once put on notice that good cause to discharge a juror may exist, the court has a duty to make whatever inquiry reasonably is necessary to determine whether the juror should be discharged. [Citation.] As we observed in People v. Gates (1987) 43 Cal.3d 1168 [240 Cal.Rptr. 666, 743 P.2d 301], to establish juror misconduct, the facts must establish '"an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality."' [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1351.)

"'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct - like the ultimate decision to retain or discharge a juror - rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.'" (People v. Bradford, supra, 15 Cal.4th at 1348.)

"What constitutes 'actual bias' of a juror varies according to the circumstances of the case. [Citation.] In assessing whether a juror is 'impartial' for federal constitutional purposes, the United States Supreme Court has stated: 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.' (United States v. Wood (1936) 299 U.S. 123, 145-146 [57 S.Ct. 177, 185, 81 L.Ed. 78.)" (People v. Nesler (1997) 16 Cal.4th 561, 580.)

"'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' [Citation.]"

(People v. Nesler, supra, 16 Cal.4th at pp. 580-581.) "An impartial juror is someone 'capable and willing to decide the case solely on the evidence' presented at trial.' [Citations.]" (Ibid.)

When the trial court asked Juror No. 2 how she knew Detective Gill, she explained: "He's my mother's boyfriend's son. She has been with him for 15 years." Appellant contends that Juror No. 2 was practically a relative of Detective Gill, and was virtually certain to have come into contact with Detective Gill on several occasions and to have developed a favorable impression of the detective's character for trustworthiness and truthfulness. He concludes that the relationship between Juror No. 2 and Detective Gill must have influenced her perception of the detective's credibility.

We do not believe that the mere fact that Juror No. 2's mother had a romantic relationship with Detective Gill's father established bias on the part of Juror No. 2. The juror's description of her connection to the detective does not suggest any degree of intimacy. The juror did not describe Detective Gill as a friend or acquaintance. She made no reference to knowing him through interaction at social occasions, such as family parties or similar events. Juror No. 2 described Detective Gill as someone who had a relationship with a person who had a relationship with someone close to her. While the relationship between the juror's mother and the detective's father was of long duration, there is nothing to suggest that Juror No. 2. had known the detective for a long time or interacted with him frequently.

Appellant contends that if the juror's mother had been married to the detective's father, bias on the part of the juror would have been implied and the juror would have been disqualified as a matter of law. (Code Civ. Proc., §§ 225, subd. (b)(1)(B); 229, subd. (a).) Perhaps so. The rule disqualifying jurors on the basis of "consanguinity or affinity within the fourth degree" to any party or witness is a bright line rule, based on blood and legal relationships, however. The juror's mother and the detective's father were not married, and so no legal relationship connected the juror and the detective to each other. In such cases, bias must be shown.

Here, the trial court specifically asked Juror No. 2 if there was anything about her knowledge of Detective Gill through her mother's relationship with the detective's father "that would interfere with your fair and impartial judgment in this matter?" Juror No. 2 replied: "I don't think so." The court also asked Juror No. 2 if she could "give both sides a fair trial and base the case solely on the evidence." She replied: "I believe so."

Appellant contends that Juror No. 2's responses to these questions had an element of uncertainty and an element of equivocation. The juror's responses could indicate uncertainty, or a firm conviction. This is a matter which is better judged from the person's tone of voice and demeanor than from a cold written record. The trial court, which heard and observed the witness, found: "There is nothing indicative that she would do anything other than give all sides a fair and impartial trial." Thus, the trial court understood Juror No. 2's answers are expressing a firm conviction. We see nothing arbitrary or unreasonable about the conclusion.

Appellant also contends that Juror No. 2 committed misconduct by failing to reveal that she knew Detective Gill during voir dire. He points out that the law provides that when a trial court discovers that a juror "misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a 'demonstrable reality,' even though the juror continues to deny bias." (People v. Price (1991) 1 Cal.4th 324, 400.)

Appellant did not contend in the trial court that Juror No. 2 had committed misconduct by failing to tell the trial court during voir dire of her relationship with Detective Gill. Appellant has thus waived this claim. (See People v. Ramos (2004) 34 Cal.4th 494. 515.)

There is nothing in the record before us to suggest that Juror No. 2 intentionally concealed the fact that she knew Detective Gill. We will assume for the sake of argument that she did not respond to the court's question asking jurors if they were familiar with any of the proposed witnesses in the case, including "Detective Gill." However, she voluntarily came forward with the information that she knew Detective Gill immediately after he testified. This later behavior is inconsistent with an intent to conceal her relationship. Her disclosure indicates that her failure to respond to the court's question during voir dire was inadvertent or unintentional. (See People v. Ray (1996) 13 Cal.4th 313, 344.) A mere inadvertent or unintentional failure to disclose does not suggest implied bias. (People v. McPeters (1992) 2 Cal.4th 1148, 1172.)

2. Exclusion of evidence

Appellant contends that the trial court erred in excluding evidence that the victim made an obscene gesture at the police officer who took a photograph of his injuries and in restricting his cross-examination of Deputy Carillo. He contends that these errors violated his due process right to a meaningful opportunity to prevent a complete defense and to his Sixth Amendment right to confront witnesses.

The trial court found that Barton's gesture of displaying his middle finger to the photographer, a gesture generally understood to mean "Fuck you," was not relevant, and permitted the prosecutor to alter the photograph to remove the gesture. We agree.

Appellant contends that Barton's gesture showed that Barton had an offensive character, was hostile and prone to aggressive, confrontational behavior. He further contends that such evidence is admissible under Evidence Code sections 1103 and 1105. We do not agree.

Evidence Code section 1105 provides that "evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom." Making a rude gesture on one occasion is not evidence of a habit or custom of making rude gestures, much less a habit or custom of being confrontational and aggressive.

Evidence Code section 1103 provides that "evidence of the character or a trait of character (in the form of an opinion, evidence of reputation or evidence of specific instances of conduct) of the victim of a crime" is admissible if offered by the defendant to prove conduct in conformity therewith. Section 1103 uses the plural "instances." Here, appellant offers only one instance. One rude gesture proves nothing, particularly when that gesture is made under very unusual circumstances.

Appellant also contends that the gesture was relevant to show that appellant was being truthful when he claimed that Barton said "Fuck you" to appellant before the fight. This too is a claim that Barton's one rude gesture shows a character trait or a habit of behavior. It does not. Moreover, a habit of making rude gestures does not show a character trait or habit of using rude words.

Appellant also contends that the trial court erred in unduly restricting his cross-examination of Deputy Carrillo about bringing five knives found at appellant's residence to court. We do not agree.

Appellant first attempted to question the deputy about the prosecutor's reasons for asking the deputy to bring in all five knives found in appellant's residence. The trial court sustained objections that the question called for speculation and was argumentative. If the prosecutor did not give the deputy a reason, the deputy's answer would be speculation. If the prosecutor stated a reason to the deputy, the deputy's repetition of the prosecutor's statement would be inadmissible hearsay. Thus, we see no improper restriction on appellant's cross-examination of Deputy Carillo on this subject.

Appellant later questioned Deputy Carillo about his motives for bringing all five knives to court, including whether he brought the knives in to make appellant look bad. No objections were made to these questions. The deputy explained that he did not know what the knife used by appellant looked like. Thus, there was no restriction on appellant's cross-examination of Deputy Carillo on this subject at all.

Since we have found no error in the trial court's ruling, we find no violation of appellant's federal constitutional rights. The application of the ordinary rules of evidence does not impermissibly infringe on a defendant's right to present a defense. Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.) At most, the exclusion of Barton's rude gesture involved a very minor point, and in no way prevented appellant from introducing evidence of Barton's behavior before appellant stabbed him, or evidence, if any existed, of Barton's character for confrontation, violence or similar traits.

Restrictions on cross-examination do not violate a defendant's Sixth Amendment right to confrontation unless the prohibited cross-examination might reasonably have resulted in "a significantly different impression" of the witness's credibility. (Delaware v. Van Arsdall (1986) 475 U.S. 674, 680.) Appellant was able to cross-examine Deputy Carillo on his reasons for bringing the knives to court. The prosecutor's credibility was not at issue. Thus, appellant's Sixth Amendment rights were not violated.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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