P. v. Kriske

Filed 10/30/06 P. v. Kriske CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant William Adam Kriske of first degree burglary (Pen. Code, § 459--count 1; undesignated section references are to this code), attempted carjacking (§§ 664/215, subd. (a)--count 2), and resisting an executive officer with force or violence (§ 69--count 3). In connection with count 1, the jury found true that another person, other than an accomplice, was in the burglarized residence making the offense a violent felony (§ 667.5, subd. (c)(21)). In bifurcated proceedings, the trial court found two strike priors (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony (§ 667, subd. (a)), and three prior prison term allegations (§ 667.5, subd. (b)) to be true.

The court sentenced defendant to state prison for an indeterminate term of 75 years to life and a determinate term of eight years.

Defendant appeals. He contends (1) the trial court erroneously denied his request to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)), (2) insufficient evidence supports his convictions for first degree burglary and attempted carjacking and (3) the trial court erroneously excluded the introduction of exculpatory evidence. We affirm the judgment.

Facts and Proceedings

About 9:00 p.m. on February 5, 2004, Paul R. heard a loud noise in his backyard. His dog started barking and then ran to the sliding glass door in the living room. Paul R. went to the door and saw a Caucasian man who tried to open the patio door. When Paul R. made eye contact with the man, the man turned around, kicked over a barbecue, and left the back yard in the direction of a house next door belonging to Carolyn L. Paul R. called 911.

Later, Paul R. found that a section of the fence he shared with his other neighbor, Suzanne H., had been knocked down. Next to the fence between his yard and Carolyn L.’s, Paul R. discovered a milk crate, which earlier had been near his house.

About 9:10 p.m., Carolyn L. and three friends, Thomas B., Melissa G. and Heather P., were sitting in Carolyn L.’s family room watching television when someone, later identified as defendant, tried without success to open the sliding glass door. Thomas B. moved the blinds, looked out of the window and saw defendant holding what appeared to be a crowbar or a large stick, possibly an axe handle, in a position ready to hit the door. Thomas B. yelled to the others to run. Melissa G. saw defendant break the glass and then he chased her, Heather P. and Thomas B. out the front door. Melissa G. later told an investigator that it appeared that defendant was “on something.”

Meanwhile, Carolyn L. went to her bedroom and got a gun. She went back into the family room and saw that the front door was open and the sliding glass door was broken. Defendant “saunter[ed]” from the kitchen area to the family room and stood in front of the television at which point Carolyn L. fired a shot over his head. Defendant put his hands over his ears, screamed and looked at Carolyn L. He then ran past Carolyn L. through the family room and dining room and Carolyn L. fired another shot over his head as she yelled “stop, freeze.”

Defendant ran down some stairs into the garage, which had been converted into the front room of the house. He pulled down some wooden shutters and tried unsuccessfully to break the glass behind them. Defendant turned towards Carolyn L., who was about 20 feet away, and she fired again until her gun was empty. Defendant ran back to the glass and kicked it. Carolyn L. went to her bedroom, got another gun, and went back to the front room where defendant had kicked and “stumbl[ed] over things” and was continuing to do so. She yelled at him to stop and fired her gun about three times towards the noise but high so she would not hit him. Glass shattered as defendant crashed through a window next to the front door.

As Carolyn L. went to the front door, she saw an axe handle on the floor near the entrance to the kitchen. It belonged to her and had been outside next to the sliding glass door. At the front door, Carolyn L. saw defendant crawling backwards towards her on a ledge at the front of the house. He got off the ledge onto the front porch, turned around and faced her, two feet away. She shot at him but he did not react so she shot at him again. She thought she shot him in the arm and there was blood on her porch. Defendant turned and ran towards the street.

During the whole time, Carolyn L. was fearful and did not know whether someone else was in her home. As a former correctional officer, Carolyn L. had been trained to shoot to wound or kill inmates. She did not consider defendant’s reactions to be normal, his eyes were “huge,” his “demeanor was erratic” and he never said anything. Carolyn L. fired a total of nine shots at defendant.

Defendant ran across the street and climbed on a motorcycle parked in a driveway, but as he did, the owner and the owner’s friends came out and chased defendant away. After defendant fled, the motorcycle was covered in blood.

Defendant, bleeding and shirtless with a T-shirt wrapped around his left arm, ran down the street toward a church. According to Lisa S. who stood in the church parking lot, defendant looked “really delirious, like he was out of it,” possibly in “shock” and “didn’t look like he was all there at the time.” According to witnesses, defendant was incoherent, “delirious,” “out of it,” staggering and “stumbling,” walking “in a daze” or “dizzily,” possibly “intoxicated.”

Defendant approached Kristopher A. who was in or near his pickup truck in the church parking lot. Defendant mumbled to Kristopher A. to “get out, mother fucker” or “get out of my way, or come here,” and grabbed Kristopher A.’s shirt with both hands. Kristopher A. thought defendant might have been intoxicated. Kristopher A. pushed defendant back and said to “get the F out of here.” Another man came to Kristopher A.’s aid and defendant stumbled down the street with others in pursuit.

A motorcycle patrol officer arrived and asked defendant if he was injured or needed help. Defendant ignored him and continued to walk down the street. The officer followed him and again asked if defendant needed help. At this point, defendant ran across a street to a parking lot. Again, the officer followed and then ordered defendant to stop and sit down. Defendant did. Although to the officer defendant seemed alert and not dazed, defendant mumbled and was agitated and uncooperative. Defendant had a gunshot wound on his wrist or forearm.

Sheriff deputies and paramedics arrived at the parking lot. A paramedic described defendant as agitated and irritable and, when questioned, defendant became more agitated, responding repeatedly with profanity and abusive language. He refused to identify himself or disclose his medical history although at one point he claimed his name was Robert Gerberding.

Defendant was strapped to a gurney and put into the ambulance. Defendant unbuckled one strap on the gurney and, although told not to, he reached for the second strap. When Deputy Sheriff David Perkins put his hand on top of defendant’s hand, defendant unbuckled the second strap, threw Perkins’s hand off, got up and came at Perkins. They struggled. Even though threatened with pepper spray by Deputy Francis Nervo, defendant refused the deputy’s order to get back on the gurney. Several deputies eventually handcuffed defendant.

On the way to the hospital, Deputy Nervo asked defendant if he tripped over a barbecue in a backyard and defendant replied, “No, I kicked it over.” Defendant continued to claim he was Robert Gerberding but had no identification on him. Deputy Nervo said defendant did not display symptoms suggesting that he was under the influence of alcohol or drugs.

At the jail, it took several deputies to get defendant’s fingerprints. Once they identified him they found he was wanted on another matter.

Angela A. testified that earlier in the evening, defendant, who was a family friend, stopped by her house, which was on the same street as Carolyn L.’s house. Defendant walked in the house without knocking or ringing the bell, something he had never previously done. He seemed “anxious” and “wild” or “crazy-looking.” He was sweaty and did not seem normal. Defendant asked where her husband was and she said her husband was in the garage. Based on prior experiences with family members as well as her husband, Angela A. associated defendant’s symptoms with illegal drug use. She admitted on cross-examination that defendant did not mumble when he asked where he could find her husband.

Discussion

I

The Faretta Motion

Defendant first contends the trial court erred when it denied his Faretta motion. The trial court did not abuse its discretion.

A complaint filed February 9, 2004, charged defendant with burglary, attempted carjacking, and forcefully resisting arrest. He was arraigned the next day and the public defender was appointed to represent him.

There was a preliminary hearing on June 2, 2004, and defendant was represented by the public defender. At the conclusion of the hearing, defendant was held to answer as charged and the public defender was reappointed to represent him. Trial was scheduled for July 27, 2004.

On July 27, 2004, the trial date was vacated and reset to September 14, 2004. On September 14, 2004, the public defender’s office was relieved due to case overload and the trial court appointed counsel to represent defendant. Trial was reset to October 20, 2004.

The October 20, 2004, trial date was later vacated, and the trial date was continued and reset a number of times. On March 15, 2005, the court set May 11, 2005, as the trial date with a trial readiness conference set for May 5, 2005.

On May 5, 2005, defendant’s court appointed attorney told the court that defendant wished to dismiss counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the Marsden hearing, the court inquired as to defendant’s reasons for his request. Defendant claimed he had been “inadequately represented” and had not “been getting [his] paperwork.” The court asked if there was anything else that he wished to say and defendant said there was not.

Defendant’s attorney then replied that he believed that defendant had all the discovery, that defendant had asked for and received the discovery related to his priors. He added that, a few days before, defendant had only asked for the “first couple hundred pages,” which his attorney had to redact for addresses and phone numbers of the victims “which [defendant] now has.” Defendant’s attorney said he was “perplexed.”

Defendant said, “That’s not true. I’ve been asking for this for six months. I never asked for the prior discovery that he already gave me. I didn’t even know nothing about that.”

Upon the court’s further inquiry, defendant’s attorney explained that he had been practicing for 34 years with 80 percent of his practice being criminal matters. He said he could not recall when he had been appointed although the record reflects that he was appointed on September 14, 2004. Defendant’s attorney said that a few days before the Marsden hearing was the “first time” defendant claimed he did not have the discovery. The attorney stated he was surprised at that because he had made a copy for defendant and that it was his practice to give his client a copy of the discovery.

Defendant said he had nothing further to add on the motion. His attorney confirmed that the attorney was ready for trial on the date that had been set, May 11, 2005.

At this point, defendant stated that he wished to “file a Faretta motion and go pro per.” The court asked, “Are you ready to go to trial next week?” Defendant answered, “No.” The court stated, “Then it’s too late. I’m not going to accept it this late. I consider that to be a delaying tactic. I don’t have to accept your Faretta motion at this time.” Defendant responded, “Okay.” The court then denied defendant’s Marsden motion.

On May 11, 2005, the court conducted a pretrial conference with each attorney and discussed several preliminary matters. On May 12, 2005, jury selection began.

“A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) A trial court may properly deny a Faretta motion made “in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice.’” (People v. Barnett (1998) 17 Cal.4th 1044, 1087, quoting People v. Marshall (1997) 15 Cal.4th 1, 23.)

Further, “a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation. . . . When the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard.” (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 (Windham).)

Windham “did not fix any particular time at which a motion for self-representation is considered untimely, other than that it must be a reasonable time before trial.” (People v. Clark (1992) 3 Cal.4th 41, 99.)

“If a defendant makes a timely request for self-representation under [Faretta], his right to do so is unconditional and the trial court must grant the request. However, ‘timely’ means ‘within a reasonable time prior to commencement of trial’ [citation], and a later request is within the discretion of the trial court to grant or deny. [Citation.]” (People v. Rivers (1993) 20 Cal.App.4th 1040, 1048 (Rivers).) “Windham instructs the trial court faced with an untimely request under Faretta to consider such factors as ‘the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’ [Citations.]” (Rivers, supra, at p. 1048.) “Error in denying a timely Faretta motion is reversible per se. [Citation.] However, once trial has commenced, the right to self-representation is no longer based on the Constitution. [Citations.]” (Id. at p. 1050.)

Error in denying an untimely Faretta motion is subject to the harmless error standard of review under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Rivers, supra, 20 Cal.App.4th at p. 1050.)

Defendant argues that his request to represent himself was timely in that the trial date had been set, vacated and reset several times, trial had not yet commenced, trial was not scheduled to begin for a week, and the trial readiness conference was his earliest opportunity to make his Faretta motion.

Defendant also complains that the trial court did not inquire about the timing of defendant’s Faretta motion, the prejudice the prosecution might suffer from a delay or the time defendant needed to prepare for trial.

Defendant claims meaningful appellate review is not possible in that the trial court failed to comply with Windham. He argues: (1) reversal or at least remand for a hearing by a referee is required under the circumstances; (2) although there were delays in getting to trial, there is no evidence that defendant was responsible for those delays; (3) the only other substitution occurred because the public defender’s office was relieved due to “overload”; (4) his acknowledgement that he was not ready to proceed to trial the following week was not necessarily a request for a continuance; (5) the trial court did not ask why his request came as late as it did; (6) “there may have been other, not yet expressed, reasons for the request for self-representation,” other than defendant’s dissatisfaction with counsel’s delay in providing discovery material as discussed at the Marsden hearing; (7) the trial court’s error was not harmless, since he “could not have done any worse,” he may have decided to testify and corroborate accounts of witnesses concerning his state of intoxication and explain that he did not have the specific intent required for the offenses of burglary and attempted carjacking.

Defendant cites but attempts to distinguish People v. Ruiz (1983) 142 Cal.App.3d 780 (Ruiz). In Ruiz, the defendant sought substitution of counsel six days before trial, saying that, if his request was denied, he wanted to represent himself. The trial court in Ruiz heard the defendant’s complaints about counsel and denied his request for substitution and for self-representation, noting that the latter request included an implied request for a continuance that the defendant confirmed and the prosecution opposed. (Id. at pp. 784-786.) Unlike the case presently before us, the trial court in Ruiz expressly concluded that defendant’s requests were not made as delaying tactics. (Id. at p. 786.)

Even so, Ruiz found the trial court did not abuse its discretion in denying the defendant’s request for self-representation as untimely in that the defendant’s request could have been made much earlier and that a continuance of the trial would have been required. (Ruiz, supra, 142 Cal.App.3d at p. 791.) There, as here, the trial court did not inquire of defendant as to his reasons for his late request in accordance with Windham. (Ruiz, supra, at pp. 791-792.)

Defendant attempts to avoid Ruiz by arguing that, unlike the defendant in Ruiz, his motion was not conditioned upon obtaining a continuance. But, in fact, it was. When asked if he would be ready for trial “next week,” that is, on May 11, defendant said “no.” A request for a continuance is necessarily implied by that answer. It is of no importance that he did not then add “and therefore I will need a continuance.”

Defendant argues that, since he did not make a specific request for a continuance in conjunction with his Faretta motion, the trial court abused its discretion in denying the motion, citing People v. Tyner (1977) 76 Cal.App.3d 352 and People v. Nicholson (1994) 24 Cal.App.4th 584. Both cases are distinguishable.

In Tyner, the defendant asked to represent himself on the first day of trial and said he was ready to proceed that day and had questions prepared. (People v. Tyner, supra, 76 Cal.App.3d at pp. 354-355.) The reversible per se standard applied. (Id. at pp. 355-356.) In Nicholson, there was no concurrent request for substitute counsel and no request for a continuance. (People v. Nicholson, supra, 24 Cal.App.4th at pp. 588-594.)

Moreover, defendant’s request to represent himself seems to have anticipated the trial court’s ruling on his Marsden motion and appears to have been made solely in frustration over the trial court’s refusal to substitute counsel. (See People v. Hines (1997) 15 Cal.4th 997, 1028; People v. Skaggs (1996) 44 Cal.App.4th 1, 5-6.)

We conclude that the trial court did not abuse its discretion in denying defendant’s Faretta motion as not having been made in a timely fashion. His court appointed counsel had been his attorney since September 14, 2004, and defendant did not make his Faretta motion until May 5, 2005, at the trial readiness conference. Defendant stated at the Marsden hearing on May 5, 2005, that he had been asking for the discovery for six months. There were four court hearings in January 2005 and three court hearings in March 2005. There is nothing in the record to suggest defendant did not have the opportunity and, according to him, a reason to ask to represent himself before May 5, 2005--at a time when the trial date would have had, again, to be continued--if that is what he truly wanted to do. (See People v. Burton (1989) 48 Cal.3d 843, 853; People v. Hernandez (1985) 163 Cal.App.3d 645, 654; Ruiz, supra, 142 Cal.App.3d at p. 791.)

Defendant complains that he was not asked for his reasons for his request for self-representation and it is “an unwarranted leap of faith” to conclude that reasons other than dissatisfaction over discovery “were nonexistent.” But defendant made no other complaint about the manner of his representation at the Marsden hearing and it is speculative at best to suggest that there were other, unexpressed reasons for his request.

Finally, any error in the trial court’s failure to weigh the Windham factors on the record is harmless. Defendant’s contention that the outcome of the trial, had he represented himself, would have been more favorable is fanciful. “[A] defendant who represents himself virtually never improves his situation or achieves a better result than would trained counsel. [Citation.]” (Rivers, supra, 20 Cal.App.4th at p. 1051.) Here, defendant was a security risk and was subject to restraints. If he represented himself, most likely he would have done so from his chair to keep the jury from seeing his waist chains and ankle shackles. Had defendant testified, the prosecutor would have impeached him with his prior convictions, which included assault with a deadly weapon and receiving stolen property. The trial court’s failure to weigh the Windham factors on the record is inconsequential. (Watson, supra, 46 Cal.2d at p. 836.)

II

Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence to support his convictions for first degree burglary and attempted carjacking. Specifically, he challenges only the evidentiary support for specific intent.

When the sufficiency of the evidence is challenged on appeal, we review “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) A conviction will be reversed for insufficient evidence only if it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The prosecution argued, alternatively, that, as to first degree burglary, defendant had the specific intent to steal, or that he had the specific intent to commit an assault with a deadly weapon or by means of force likely to produce great bodily injury. We review the record to determine whether substantial evidence supports either theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)

For attempted carjacking, the jury had to find that defendant had the specific intent to commit carjacking.

The necessary intent for burglary “is rarely susceptible of direct proof and may be inferred from the circumstances disclosed by the evidence.” (People v. Walls (1978) 85 Cal.App.3d 447, 452.)

As to both offenses, defendant argues that he was impaired and intoxicated to the point that he was unable to harbor specific intent to steal or to assault anyone or to commit carjacking. We recognize that many eyewitnesses described defendant as impaired or intoxicated [erratic demeanor, not normal, “out of it,” incoherent, delirious, stumbled, “wild” or “crazy” looking, mumbled, etc.]. Although defendant acknowledges that Deputy Nervo testified that he did not observe signs of alcohol or drug use, defendant argues that Deputy Nervo’s testimony is not credible evidence and deserves no weight in view of the overwhelming evidence of defendant’s impaired mental state as testified to by every other witness. But defendant also recognizes that Officer Pierson, the motorcycle patrol officer, testified that defendant did not appear dazed but seemed alert with his eyes “fairly wide open” but mumbled when he spoke. And defendant acknowledges that this court will “‘not substitute our evaluation of a witness’s credibility for that of the fact-finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The prosecutor argued that even assuming defendant was intoxicated, he was not intoxicated to the point where it would negate his specific intent. The jury obviously agreed and the facts support the jury’s determination. As the prosecutor argued, defendant knew what he was doing when he kicked over Paul R.’s barbecue because defendant looked at Paul R. as he did it. Later, defendant told an officer that he had not tripped over it. Defendant knew what he was doing when he used a milk crate to assist him in climbing over the fence between Paul R.’s home and Carolyn L.’s home. Defendant knew what he was doing when he tried to flee the scene when he first tried to leave on a motorcycle and then in Kristopher A.’s truck. Defendant knew what he was doing when he lied about his identity to an officer to avoid being arrested for a different offense. Defendant’s flight evidences a consciousness of guilt. (People v. Visciotti (1992) 2 Cal.4th 1, 60-61; CALJIC No. 2.52.)

These acts show that defendant was not so impaired that he could not specifically intend to steal, to commit an assault, or to commit carjacking. And the jury reasonably could have concluded that some of defendant’s actions after he left Carolyn L.’s home may have been the result of having been shot.

For first degree burglary, the specific intent to steal was shown by defendant’s conduct of going through Suzanne H.’s and Paul R.’s backyards before finally entering Carolyn L.’s home. Defendant acknowledges that an intent to steal can be inferred from the circumstances surrounding the entry into the home. (People v. Holt (1997) 15 Cal.4th 619, 669.) The specific intent to commit aggravated assault was shown by defendant’s use of an axe handle to break the sliding glass door and his initial pursuit of the occupants.

As to the charge of attempted carjacking, the specific intent to commit carjacking was evidenced by defendant’s failed attempt to steal a motorcycle and, when chased off, his further attempt to remove Kristopher A. from his truck.

Defendant claims that, because a witness observed that the keys were not in the ignition of Kristopher A.’s truck, defendant would have noticed the same and had he wanted the truck, he would be looking for the keys, not goading Kristopher A. with profanity into a fight. But it cannot be seriously argued that grabbing Kristopher A.’s shirt while he was in or near his truck and saying “get out, mother fucker” and “get out of my way, or come here” are acts goading someone into a fight. They are acts showing defendant attempted to take a truck as he was fleeing, shot, down the street, and trying to find some vehicle to aid an escape. And there is no evidence that defendant observed that the keys were missing from the ignition. It would have been difficult for a reasonable jury to find any other intent than an intent to take the vehicles.

Defendant argues that his conduct was at most an unprovoked assault with respect to Kristopher A. He does not cite to the record where this theory was presented to the jury and we need not discuss it. Further, in closing argument, defense counsel argued that defendant’s conduct with respect to Kristopher A. amounted to “an ambiguous statement cou[]pled with an ambiguous act.” The jury was instructed on intoxication with respect to both first degree burglary and attempted carjacking, which the jury rejected in returning its verdicts. Sufficient evidence supports the specific intent to steal or commit aggravated assault and the jury’s verdict of first degree burglary. Sufficient evidence supports the specific intent to commit carjacking and the jury’s verdict of attempted carjacking.

III

Evidence of Intoxication

Finally, defendant contends that the trial court prejudicially erred in refusing to admit exculpatory evidence of defendant’s intoxication, specifically that he was placed in an “ethyl alcohol protocol“ when he arrived at the jail. We need not decide if this was error because we conclude that, if it was, it was harmless. Abundant evidence in the record attested to defendant’s bizarre behavior and the evidence of defendant’s guilt was overwhelming. Moreover, the evidence relating to the housing arrangement at the jail was equivocal. It is not reasonably probable that defendant would have obtained a more favorable result if the court had allowed the doctor the defense wanted to call to testify about defendant’s placement in the ethyl alcohol protocol in the jail. (Watson, supra, 46 Cal.2d at p. 836.)

Defendant’s claim of federal constitutional error fails because the ruling did not prevent him from presenting evidence that his conduct was drug or alcohol induced. Generally, a trial court’s evidentiary ruling does not impermissibly infringe on a defendant’s right to present a defense. (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Cunningham (2001) 25 Cal.4th 926, 998-999.) Several witnesses testified that defendant’s conduct appeared to be alcohol or drug induced. The exclusion of the doctor’s testimony about defendant’s placement in the ethyl alcohol program in jail after he was arrested does not amount to the denial of a defense or constitute a violation of due process. (Ibid.)

Disposition

The judgment is affirmed.

HULL , J.

We concur:

DAVIS , Acting P.J.

CANTIL-SAKAUYE , J.

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