Filed 9/20/18 P. v. Evans CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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Following a jury trial, defendant Matthew Gray Evans was convicted of petty theft as a lesser included offense of robbery (Pen. Code, § 488)[1] and assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced defendant to serve a four-year state prison term.

On appeal, defendant contends (1) the trial court’s decision to admit, if he testified, a video of his behavior in the patrol car without also redacting racial slurs violated his rights to testify, present evidence, present a defense, and due process, (2) his trial counsel was ineffective in not asking for a continuance after the late disclosure of the video, and (3) the trial court deprived him of his right to present a defense by prohibiting defense counsel from raising arguments about brandishing during closing argument. Finally, he asserts cumulative error warrants reversal. We conclude the trial court’s decision to conditionally admit the video even without redaction was within its discretion, defendant was given sufficient time to review the video without a continuance, and there was no error in limiting defense counsel’s closing argument. We also reject defendant’s claim of cumulative error. We shall affirm.

BACKGROUND

The Crimes

Defendant entered a Safeway gas station on Lake Tahoe Boulevard on May 24, 2016. He asked the assistant manager about buying matches. The manager told defendant they had lighters but no matches, taking a lighter from behind the counter to show him the price. Defendant reached into his pocket, but then grabbed the manager’s hand and twisted it, causing her to drop the lighter. He threw two plastic energy drink bottles at the manager, narrowly missing her face. Swearing at the manager in a loud voice, defendant grabbed the lighter display dumping the lighters on the floor, picked up several lighters, and ran outside.

About an hour later, defendant was at the campus of Lake Tahoe Community College. A director for the college, who was also its security coordinator, noticed defendant, whose yelling and swearing caused a group of people to move away. The security officer went up to defendant, introduced himself, and asked if anything was wrong. Defendant, with very quick and agitated movements replied, “None of your fucking business.”

Concerned for campus security, the security officer tried to engage defendant. An agitated defendant responded by advancing toward the security officer, asking why he was following him, and then quickly walked away while telling the security officer, “it was none of [his] fuckin’ business.” Defendant did this about a dozen times. After numerous unsuccessful attempts to find out what was bothering defendant, the security officer told him to leave campus or the police would be called. Defendant replied by asking the security officer if he had any children. When the security officer said he did, defendant, speaking in a loud voice and moving towards the security officer responded, “What, are you fucking stupid?”

Defendant picked up small chunks of asphalt and threw them at the security officer as he continued to ask him if he was stupid. The security officer told defendant he was going to call law enforcement authorities. Defendant drew a knife with a five-to- six-inch long blade with a fixed handle and advanced on the security officer. The security officer took out his cell phone and called the police. Defendant walked back to the security officer and slapped the phone out of his hands, but the security officer caught it in midair and made the call. Defendant raised the knife and held it like an ice pick as he moved on the security officer.

Defendant moved the knife up and down and then turned away. The security officer resumed walking with him. The security officer told defendant to put the knife away because he was on a college campus. Defendant continued to wave the knife and got within two to three feet of the security officer. The security officer never threatened or tried to hit defendant during their encounter.

A student trustee at the college noticed defendant was shouting and moving aggressively. He heard the security officer ask defendant what was the matter and defendant tell the security officer, “it was none of your business and to back off.” Defendant drew a knife; he held it with the blade pointing down and alternated holding it at ear and waist level. Defendant told the security officer, “If you want to talk to me it’s going to cost you three bucks.” He repeatedly rushed the security officer with the knife and then backed off. Defendant also threw rocks at the security officer. The student also saw defendant slap the phone out of the security officer’s hands and the security officer catch the phone in midair. The security officer did not threaten defendant during the encounter.

South Lake Tahoe Police Department Sergeant Shannon Laney responded to the incident. He drew his firearm, aimed it at defendant and ordered him to the ground. Defendant immediately complied. Defendant was arrested and the ensuing search uncovered eight Bic lighters and a can of pepper spray. Defendant also dropped an eight-inch hunting knife with a fixed blade that Sergeant Laney retrieved.

Defendant was at first cooperative, but yelled and swore at Sergeant Laney after he was placed in the patrol car. He could not hear what defendant said because the door was closed, the engine was running, and the police radio was broadcasting through his earplug.

Called as a defense witness, South Lake Tahoe Police Department Sergeant Scott Crivelli testified to responding to a report of someone “brandishing a knife” at the college. The college security officer told him defendant held the knife with the blade along the inside of his forearm, and did not point it at him.

The Late Discovered Evidence

During the trial, just before the defense started cross-examining the college security officer, the court was informed the prosecution recently discovered two previously unknown items of evidence, a video recording from the patrol car and a recording of the security officer’s 911 call. The prosecutor did not know about the evidence until informed of it by Sergeant Laney during the lunch break the previous day. The prosecutor immediately informed defense counsel. Defense counsel and the prosecutor viewed the video together at the police station after court. That evening, the prosecutor personally transcribed the video and e-mailed the transcript to defense counsel. The following morning, the prosecutor obtained a tape of the 911 call and forwarded it to defense counsel.

The video first shows defendant dropping the knife and being searched. The police officers cannot be heard. Defendant is heard once he is placed in the patrol car; about two-thirds through the video Sergeant Laney switches the camera to the one showing defendant in the car.

During the video, defendant repeatedly swears at and insults Sergeant Laney and the college security officer. At one point, defendant said to the security officer, “I am [your] fucking superior. You understand that you fucking wigger.[2] You ever act like you got a gun again, and you don’t you’re bumper clotted bitch. Respect it. You’re a dumb nigger. You’re as good as a nigger.”

Defense counsel requested exclusion of both pieces of evidence because the late discovery violated the discovery statute. The prosecutor replied that he did not knowingly or intentionally cause the late discovery, the evidence was highly probative, and the late discovery instruction was sufficient sanction. Defense counsel replied that if the patrol car recording was admitted, the racial slurs uttered by defendant were highly inflammatory. He also argued it was not necessary to include the racial slurs to show the anger level of defendant because there were other portions of the video that can show that.[3]

The trial court ruled the prosecution could not present either piece of evidence in its case in chief as a sanction for late discovery. It could be presented in rebuttal, but the jury would be given the late discovery instruction. If defendant did not testify, the prosecution could not present the patrol car video.

Later, when asked by the trial court if he was going to testify, defendant informed the court he would not.

DISCUSSION

I

Ruling on Patrol Car Video

Defendant contends the trial court’s ruling allowing an unredacted version of the patrol car video to be admitted if he testified, violated his Fifth Amendment right to testify, his Sixth Amendment right to present evidence and a defense, and his due process right to a fair trial. According to defendant, admitting the video without redaction if he testified was an abuse of its discretion under Evidence Code section 352 that effectively dissuaded him from testifying, thereby violating his rights.

While defendant did not make these constitutional claims to the trial court, or ask the court for a ruling on redacting the video, we address the substance of the claim since defendant asserts that any failure to preserve the issues constitutes ineffective assistance of counsel.

The trial “court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.” (Evid. Code, § 352.) We will only reverse an exercise of the trial court’s discretion under Evidence Code section 352 if “ ‘the court exercised its discretion in an arbitrary, capricious or patently absurd manner,’ ” resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

The Supreme Court held admission of the racial slurs of an accused murderer used to describe the victim is not so inflammatory that their probative value was substantially outweighed by their potential for undue prejudice (Evid. Code, § 352; People v. Quartermain (1997) 16 Cal.4th 600, 627-629 (Quartermain).) First, evidence of racial slurs is probative. Among other things, it demonstrates “enmity by an accused murderer towards the victim” that is “a relevant factor in deciding whether the murder was deliberate and premeditated because it goes to the defendant’s motive. [Citations.]” (Id. at p. 628.) Second, although racial slurs are despicable, they are “regrettably not so unusual as to inevitably bias the jury against the defendant.” (Ibid.) Racial slurs, therefore, are admissible because “racial epithets [are] not so inflammatory that their probative value [is] substantially outweighed by their potential for undue prejudice.” (Ibid.)

The reasoning and holding in Quartermain, supra, 16 Cal.4th 600 supports the trial court’s ruling. The racial epithets defendant directed at the college security officer showed racism directed against Black people, and hostility towards the security officer, who is White. Although only the term “wigger” refers to the security officer’s race, defendant’s two uses of the deeply offensive term for Black people reflects hostility towards the security officer by asserting his victim is a bad person for acting or being like a Black person. Defendant’s behavior in the patrol car shortly after the incident thus shows an animus toward his victim that is evidence supporting the mental element of assault with a deadly weapon, “ ‘the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another. [Citations.]’ ” (People v. Lee (1994) 28 Cal.App.4th 1724, 1734.) The racial epithets defendant employed against the security officer, while despicable, are relevant to show that animus. Applying Quartermain, we conclude the racial epithets are not so prejudicial as to warrant redacting them from the video.

Based on our conclusion upholding the admission of an unredacted version of the video, the various constitutional rights asserted by defendant were not violated. (See People v. Harris (2005) 37 Cal.4th 310, 336 [“the application of ordinary rules of evidence does not implicate the federal Constitution”].) His claim trial counsel was ineffective in failing to preserve the claim on appeal is likewise without merit.

II

Request for Continuance

Defendant contends trial counsel was ineffective in failing to ask for a continuance following the late disclosure of the video. He correctly notes a continuance is a remedy for late disclosure of evidence. (See § 1054.5, subd. (b); In re Jessie L. (1982) 131 Cal.App.3d 202, 210.) Defendant also points out he was rattled by the disclosure of the video, since he engaged in several outbursts during the hearing on the late-discovered evidence. He argues counsel should have requested a continuance to help defendant “regain his composure and make an informed decision about whether to testify.”

To establish ineffective assistance of counsel, a defendant must show his or her counsel’s performance was deficient as measured against a reasonably competent attorney and deficient performance prejudiced defendant in that it “ ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79, 122.) Defendant can do neither.

On the day after the video was discovered, defendant and counsel had an opportunity to review the video together during the lunch break. The lunch break took place during the security officer’s cross-examination. Defendant did not tell the court he was not going to testify until after the conclusion of the security officer’s testimony, shortly after 2:20 that afternoon.

Defendant was provided with an opportunity to view the video and presumably discuss it with counsel.[4] He did not indicate he needed more time when he told the court of his decision not to testify. Based on this record, there is no indication defendant needed more time to reflect before deciding, with counsel’s advice, on whether to testify in light of the video.

III

Defense Counsel’s Closing Argument

Defendant contends the trial court improperly disallowed counsel’s argument on brandishing during closing argument. We are not persuaded.

A.

Additional Background

At several points when questioning witnesses, defense counsel referred to defendant’s use of the knife as “brandishing” or being “brandished.” Counsel also elicited from Sergeant Laney that he had responded to a call of brandishing a knife. During discussions on jury instructions, the trial court stated it would not instruct on the crime of brandishing because it was not a lesser included offense of assault with a deadly weapon. Defense counsel replied, “I was going to request it anyway.”

Defense counsel argued in closing: “Throughout [the security officer]’s testimony, first of all, I asked him several questions about whether the weapon was brandished. It wasn’t brandished when they were walking in tandem. It wasn’t brandished when there was shouting going on and calling him F’n stupid. It wasn’t brandished when the phone was perhaps knocked out of his hand. [The security officer] said, I saw metal when the knife was brandished. So think of, well, what’s brandishing? Brandishing is every person who except in self-defense in the presence of another person--.”

The prosecutor interrupted with an objection that the argument was improper. The trial court sustained the objection because counsel was “arguing something that’s not before the jury.” Counsel replied he was “arguing by contrast what the law is in one versus another.” The trial court replied, “They have not been read that instruction. I do think it’s improper argument.” Counsel went on to argue the prosecution failed to prove defendant did anything constituting an assault, and defendant did nothing wrong while the security officer was being intrusive. During jury deliberations, defendant filed a motion to instruct the jury on brandishing under section 417 and to reopen closing argument to argue an alternative theory of liability. The trial court denied the motion.

B.

Analysis

Defendant has a constitutional and statutory right to present a closing argument. (Herring v. New York (1975) 422 U.S. 853, 865 [45 L.Ed.2d 593, 595, 602]; § 1093, subd. (e).) As a matter of constitutional law, however, the trial court has “great latitude” in limiting the scope of closing argument. (Herring, at p. 862 [45 L.Ed.2d at p. 600].) The trial judge may “terminate argument when continuation would be repetitive or redundant. He [or she] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he [or she] must have broad discretion.” (Ibid.)

Defendant relies primarily on People v. Valentine (2006) 143 Cal.App.4th 1383 (Valentine). The defendant in Valentine was charged with robbery; his defense was that he only received the stolen property. (Id. at pp. 1385-1386.) The trial court declined the defendant’s request to instruct on receiving stolen property. (Id. at p. 1386.) On appeal, the defendant acknowledged receiving stolen property was not a lesser included offense of robbery, but claimed “he nonetheless was entitled to the requested instruction because the omission amounted to a failure to instruct on a defense theory—that he received property he knew to be stolen but that he did not steal it.” (Id. at p. 1387.) The Court of Appeal rejected the contention, finding, “[i]t has never been the law that an accused is entitled to instructions on offenses for which he [or she] is not charged in order to urge the jury that he [or she] could have been convicted of something other than what is alleged.” (Ibid.) The Valentine court additionally observed receiving stolen property in this context was not a defense to robbery but “a theory of criminal liability based on a different offense.” (Id. at p. 1388.) Failure to instruct on receiving did not deprive the defendant of a defense. (Ibid.) “We do not suggest, however, that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery.” (Ibid.)

Defendant’s argument is based on this last sentence. Similar to the defendant in Valentine, supra, 143 Cal.App.4th 1383 defendant wanted to argue he was guilty of only brandishing to urge the jury that he was not guilty of assault with a deadly weapon. Defendant sought to present through closing argument the legal definition of an uncharged crime that is not a lesser included offense. As in Valentine, we reject defendant’s attempt to place the legal definition or instruction for brandishing before the jury. Arguing the legal definition of an uncharged crime risks confusing the jury and usurping the court’s province as the sole source of law for the jury. A similar argument was rejected in People v. Brown (2016) 6 Cal.App.5th 1074. The defendant in Brown was convicted of witness intimidation under section 136.1, subdivision (c)(1), a serious felony. (See § 1192.7, subd. (c)(37); Brown, at p. 1076.) Among the defendant’s claims on appeal were that the trial court erred in failing to instruct on witness intimidation under section 137 and in precluding counsel from arguing defendant was guilty only of witness intimidation under that statute. (Brown, at p. 1077.) As relevant in Brown, section 136.1 addressed preventing a prosecution while section 137 addressed forcibly inducing falsehood. (Brown, at pp. 1079-1080.) Citing Valentine, the Court of Appeal found the defendant was not entitled to an instruction on section 137 because it was not a lesser included offense of section 136.1. (Brown, at p. 1087.) Relying on the same sentence in Valentine as defendant in this case, the defendant in Brown argued counsel should have been allowed to argue to the jury he was guilty of the lesser offense. (Id. at pp. 1087.) The Brown court rejected the claim. Addressing the sentence from Valentine, the Brown court noted, “Nevertheless, it held that the defendant was not entitled to an instruction on receiving stolen property. Here, similarly, defendant was not entitled to an instruction on forcibly inducing falsehood.” (Ibid.) While the defendant could argue he was guilty of no more than inducing a falsehood, he could not discuss “the separate crime of forcibly inducing falsehood.” (Id. at p. 1088.)

Here, the trial court did not prevent defendant from arguing he merely brandished the knife. Rather, the trial court prevented defense counsel from providing the jury with the legal definition of an uncharged crime during closing argument.

We conclude the trial court did not abuse its discretion to limit defense counsel’s closing argument to discussing the crimes actually charged.

IV

Cumulative Error

Defendant claims cumulative error warrants reversal. Having rejected all of his other claims, we reject this one as well. (People v. Doolin (2009) 45 Cal.4th 390, 445.)

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

HULL, Acting P. J.

/s/

DUARTE, J.