P. v. Ervin

Filed 6/18/07 P. v. Ervin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

Appellant John R. Ervin, Sr. was convicted by jury of assault by means of force likely to produce great bodily injury. (Pen. Code,  245, subd. (a)(1).)^[1] He was acquitted of a charge of assault with a deadly weapon with a 15-pound dumbbell. The jury found true the allegation that appellant had personally inflicted great bodily injury upon the victim. ( 12022.7, subd. (a).) Appellant admitted that he had three prior serious felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). He also admitted having served three prior prison terms. ( 667.5, subd. (b).)

The trial court sentenced appellant to 25 years to life under the Three Strikes law. It struck the prison term priors but imposed an additional 5-year enhancement pursuant to section 667, subdivision (a)(1), for a total aggregate term of 30 years to life in state prison. We affirm.

FACTS

The El Dorado nightclub is located in Lancaster, California. There were approximately eight security guards on duty on the night of the offense. Among the guards were Gregory Bradford, Avery Smith and victim David Winburn.

When the club closed, three or four fights erupted in the parking lot. Avery Smith was the security supervisor that evening. He was in the parking lot with Winburn and both were involved in trying to stop fights between women. Smith could see Winburn and Bradford nearby, approximately 10 feet to his left, both trying to stop different fights. Winburn testified that he was trying to direct one of the women away from the other. A group of men standing nearby were shouting, "Let them fight, let them fight." Suddenly, Winburn was knocked unconscious. He did not see his assailant.

Appellant approached Bradford and said something like, "that's my sister or my girl . . . don't put your hands on them." He tried to remove Bradford's hands and Bradford told appellant to "back away" and he did so. Bradford next saw appellant strike Winburn on the side of the head with a black metal object. He heard appellant say, "I knocked that muther-fucker [sic] white boy out."

Smith looked over and saw appellant standing next to Winburn. He saw Winburn fall to the ground but did not see anyone strike him. Smith heard appellant say that he had "one-hitter quitters" and had just "knocked the bitch ass security guard out." Both Bradford and Smith ran to Winburn's aid, and Bradford identified appellant as the assailant.

Appellant got into the passenger side of a white Blazer truck, driven by Carolyn Aldana. She attempted to drive from the lot, but was stopped by sheriffs deputies who had been called to the scene. Aldana told one of the deputies that she knew nothing about an assault. The deputy recovered a black dumbbell from the floorboard of the truck, underneath some papers and debris. When appellant was detained, he said he was "in the wrong place at the wrong time" and was "just trying to help the security guard." The dumbbell was shown to Bradford, who said it could have been the weapon used on Winburn. No blood or hair was found on the dumbbell.

Paramedics transported Winburn to the hospital. He had sustained a laceration to his head that required three staples to close. Winburn's treating neurosurgeon testified that the injury was consistent with a blow, rather than a fall. He suffered from dizziness for about one month after the assault.

Defense Evidence

Carolyn Aldana was appellant's girlfriend. After visiting the club Aldana and appellant walked toward the parking lot where they saw several fights, all among women. Appellant tried to help break up one of the fights while Aldana stood behind him, pulling on his shirt and trying to get him to leave. He left the fight and they entered the truck, appellant sitting in the passenger seat. The dumbbell found in the car belongs to Aldana's nine-year-old son. Aldana did not see appellant holding the dumbbell or assault anyone.

Prosecution Rebuttal Evidence

Alfred Pico, events staff manager of the El Dorado club, accompanied Winburn to the court for the preliminary hearing. While he was waiting outside the court in the hallway downstairs, a woman approached him and struck up a conversation. He did not know who she was until she said, "I don't know why he took the dumbbell out of the truck, I don't know why it was even in the truck." Pico did not discuss the case with her and he returned to the courtroom.

Defense Surrebuttal Evidence

Aldana testified that she spoke to Pico in the courthouse hallway, and he told her that appellant should take the deal offered by the prosecutor or that the El Dorado owners and the insurance company would make sure he got 25 years.

Defense Witness Gregory Dyas

During a break in voir dire, defense counsel informed the court that he had learned of a defense witness, Gregory Dyas, who was allegedly a witness to the fight at the El Dorado. He had seen the assault on Winburn and had also witnessed two other fights that evening. Dyas does not know appellant but approached him while both were aboard the transport bus on the way to the courthouse and asked appellant if he was charged in the case. The court ordered that Dyas be brought into court so he could be ordered back as a defense witness. Defense referred to Dyas's expected testimony in his opening statement, saying that the jury would hear that appellant was not the individual who assaulted Winburn.

Dyas failed to appear and a warrant was issued for his arrest. The district attorney and defense counsel initially agreed to stipulate to Dyas's expected testimony. Defense counsel informed the court, "I had prepared, as the court had requested, [and] provided a copy to counsel and to the court of the proffered statement given me by [Gregory Dyas]." The district attorney inquired, "Your honor, what are we going to do with the statement--" The court responded, "Well, as [defense] counsel indicated earlier, in the event that this witness is not available, my understanding [is] that the attorneys have agreed to, agreed to some statement that [Dyas] would make if he were to testify. . . ."

The district attorney stated that she had conferred with others in her office and could not stipulate to Dyas's expected testimony. She recounted the attempts to locate Dyas. Two days earlier, when it was first learned that he had not complied with the court order to appear, the bailiff contacted the sheriffs department and a unit was dispatched to Dyas's last known address, but he was not at that location. The district attorney next contacted a deputy who obtained Dyas's most recent address from the parole office. This was a different address than that provided to defense counsel. The deputy sent someone out to that address, but Dyas was not found.

The court acknowledged that efforts had been made to bring Dyas into court, including its own order. The court stated, "[Dyas] has chosen not to show up. I--there is no proof that anything untoward has occurred. So he's just not going to be testifying in this case." The district attorney added that Dyas "may never be found. He's someone who roams the streets. . . .  That's why nobody--people have gone to all these addresses and no one's been able to locate him. . . .  He knew he was supposed to come back to court. . . .  He was ordered to."

The trial court denied defense counsel's motion for a mistrial. Defense counsel moved for a continuance, arguing that that there had been "relatively few hours of trial" and asked that the matter be continued for several days to allow more time to try to locate Dyas. The court denied the motion, noting that one juror was ill and would not be returning and the trial had already been continued three or four times. The court stated, "without any further evidence that this person will be picked up or in the near future would appear[,] it seems to [me], that it would be a vain act and we may lose more jurors."

Appellant alleged in his opening brief that Dyas would have testified that he was present at the club on the night of the offense. He saw someone strike Winburn and knock him out, but appellant was not the assailant.^[2]

DISCUSSION

Appellant claims the trial court's refusal to grant a continuance or motion for a mistrial violated his Sixth Amendment right to present a defense and his Fourteenth Amendment right to due process and a fair trial.

Both the denial of a motion for a mistrial and the denial of a request for a continuance are reviewed for an abuse of discretion. (People v. Fudge (1994) 7 Cal.4th 1075, 1106; People v. Cox (2003) 30 Cal.4th 916, 953.) "'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged . . . .'" (People v. Williams (2006) 40 Cal.4th 287, 323.)

The trial court possesses broad discretion to grant a continuance to permit counsel to secure the presence of a witness. (People v. Roybal (1998) 19 Cal.4th 481, 504.) "'To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.]" (Ibid; People v. Howard (1992) 1 Cal.4th 1132, 1171.) The trial court must not only consider the benefit to the moving party, but also "the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting the motion." (People v. Fudge, supra, 7 Cal.4th at pp. 1105.)

Despite the trial court's order, Dyas failed to appear and a warrant was issued for his arrest. The sheriff's department made two attempts to locate him, but both were unsuccessful. There was no showing by the defense that Dyas's testimony was material. Dyas was to have testified that appellant had not assaulted Winburn. This testimony would have been cumulative because Aldana had already testified that she did not see appellant commit an assault. Nor did defense counsel show that the testimony could be obtained within a reasonable time. To the contrary, Dyas was apparently a transient and, despite two attempts, his whereabouts remained unknown. There is no indication that a continuance would have allowed Dyas to be located and brought before the court in a timely manner.

Because the trial court did not abuse its discretion, we reject appellant's contention that its rulings denied him his constitutional rights to present a defense and to receive a fair trial.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Carol C. Koppel, Judge

Superior Court County of Los Angeles

______________________________

Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code.

^[2]In reciting his these facts, appellant has appended to his opening brief an exhibit which he alleges is a "true and correct copy of the statement that defense counsel prepared, and gave to the District Attorney and the court reciting what the witness Gregory Dyas would say if he were to testify." The document is a single typewritten sheet of paper, which is unsigned and appears incomplete. Appellant did not move to augment the record with this document, thus it is not properly before us. Although unsupported by the record, we nevertheless consider appellant's factual allegations contained within his brief.