P. v. McKenzie

Filed 6/26/08 P. v. McKenzie CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruth Ann Kwan, Judge. Affirmed.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Mathews and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Gustavo McKenzie appeals from the judgment entered following his conviction by jury of carrying a concealed dirk or dagger (Pen. Code,  12020, subd. (a)(4)) with admissions that he suffered a prior felony conviction (Pen. Code,  667, subd. (d)) and two prior felony convictions for which he served separate prison terms (Pen. Code,  667.5, subd. (b)). The court sentenced appellant to prison for three years. Appellant claims trial errors occurred. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 1:30 a.m. on July 7, 2006, uniformed Los Angeles Police Officer Steven Sieker and his partner were on patrol in a marked patrol car travelling southbound on Kansas near 45th, a residential area. The two were part of a unit which sought to suppress violent crimes. Sieker was in the area of 45th and Kansas because it was a high crime area experiencing robberies and aggravated assaults.

Sieker, a passenger in the patrol car, saw appellant and a female sitting on a small fence that lined the west sidewalk of Kansas between 45th and 46th. Sieker illuminated the two with his spotlight. He testified . . . I observed [appellant] lean back; and with his right hand, reach into the area of his waistband and remove what appeared to be a shiny metallic item on his waistband and place it on the fence approximately one to two feet away.

Sieker testified as follows. Appellant was wearing a button-down shirt. The shirt was not tucked in appellants pants. When appellant took the knife from the area of his waistband, his left hand was by his left side, and his right hand was . . . moving from the area of his waistband, coming out, and then going to the wall. The prosecutor requested that the record reflect that Sieker, when testifying, used his right hand . . . as if pulling something out and placing it with the arm outstretched right next to him, and the court granted the request.

Because of Siekers vantage point, he could not say whether he saw appellants hand with the knife come from under the shirt, but if the shirt had been covering appellants waistband, appellant would have retrieved the knife from under his shirt. The knife would have been fully concealed by the shirt if the shirt had been untucked.

Sieker testified that he and his partner approached appellant and the female, and Sieker and his partner observed more closely the object that appellant removed from his waistband. Sieker described it as a five-inch stainless steel bladed knife, fixed-blade knife with a black, plastic handle. Police arrested appellant and seized his clothing, and later put the knife in a sheath so that no one handling it would be injured. Sieker, examining the knife in court, referred to it as the weapon that he and his partner recovered from the wall.

During cross-examination,^[1]the following occurred: Q And it is your testimony that you saw me lean my upper body backward, and with my right hand took a knife out of my waistband? Is that your testimony, sir? [] . . . [] A My testimony was that you removed the knife from the area of your waistband. [] Q Can you listen to the question, sir. [] Is it your testimony that you saw me lean my upper body backward, reach into my waistband with my right hand and took [sic] a knife out of my waistband? [] A Yes. Sieker testified that appellants shirt was hanging out.

Sieker later testified, You leaned back; with your right hand, you reached into the area of your waistband, removed a shiny metallic object and placed it to your right side, just one or two feet away. The following then occurred: Q By the Defendant: Just like that, just reached my hand into my waistband and removed this metallic object. Is that your testimony, sir? [] A Yes. [] Q Can you explain to me, how is it that my right hand reached into my waistband with my shirt hanging out? [] A It seems fairly reasonable to me that you could reach into the area of your waistband whether your shirt was tucked in or out. According to Sieker, the knife appeared to be a sharp object. Appellant asked Sieker, And for that knife to be in my waistband, I would have to put this there, wouldnt you agree? Sieker replied yes.

The following then occurred: Q Now, sir, looking at this knife with a point like this, isnt it obvious that putting something like this in my waistband and sitting down and leaning forward would poke a hole in me? [] A Its not obvious. Appellant, in court, showed Sieker the pants appellant was wearing when police arrested him, and asked Sieker if he saw damage to the pants as a result of the knife. Sieker testified there appear[ed] to be several markings, or I guess you could say fraying in the material, but no holes.

Appellant asked Sieker whether it would be prudent for an officer making a weapons arrest to run a check on this weapon for fingerprints or DNA. Sieker replied no. Appellant then asked, Is that why you didnt take any fingerprints off this weapon, sir and Sieker replied no. Appellant later asked, Looking at this weapon, sir, Im quite curious as to why you wrapped it with a cardboard. Could you explain that? Sieker replied it was wrapped in cardboard to protect evidence handlers from injuries or from puncturing themselves with sharp objects.

During redirect examination, Sieker testified he had conducted patdown searches of perhaps 200 persons who had knives in their waistbands. A knife in a persons waistband did not necessarily inflict injury or destroy the persons clothing. The knife at issue could have been in someones waistband without inflicting injury, a situation which Sieker had encountered many times.

2. Defense Evidence.

In defense, a fingerprint expert testified he examined the subject knife and found no fingerprints. There was a 50% chance that fingerprints would be left on a surface.

During direct examination, appellant asked the expert whether he performed or attempted to perform a fingerprint analysis on a weapon in this case[.] The expert replied, On a knife in this case, yes, sir. Appellant later asked the expert to explain the techniques he employed in his attempt to retrieve fingerprints from this weapon. The expert then testified as to various techniques. Later, appellant, referring to a defense photograph, asked the expert whether, in the course of his analysis, the expert took that photograph of that weapon and the expert replied yes.

CONTENTIONS

Appellant claims (1) there is insufficient evidence that he possessed a concealed dirk or dagger, (2) the trial court erroneously excluded evidence of racial profiling, violating appellants right to present a defense, (3) the prosecutor knowingly presented false evidence, violating appellants right to due process, and (4) the prosecutor committed misconduct during jury argument.

DISCUSSION

1. Sufficient Evidence Supported Appellants Conviction.

Appellant claims there is insufficient evidence supporting his conviction because Sieker could not see whether the weapon was actually concealed, or merely being taken off [appellants] lap, and could not see whether appellant retrieved the knife from under his shirt. We reject the claim.

Penal Code section 12020, subdivision (a)(4), states, in relevant part, (a) Any person in this state who does any of the following is punishable . . . : [] . . . [] (4) Carries concealed upon his or her person any dirk or dagger.^[2] (Italics added.)

In the present case, Sieker, referring to appellants retrieving of the knife, testified that appellants right hand was moving from the area of his waistband, coming out. During that testimony, Sieker gestured, using his right hand as if pulling something out. Sieker also testified that he and his partner observed more closely the item which appellant removed from his waistband.

During cross-examination, Sieker testified appellant took the knife out of his waistband. Sieker also testified appellant reached into his waistband and took a knife out of his waistband. Sieker further testified appellant reached his hand into his waistband and removed the knife. Sieker saw several markings or fraying in the pants which appellant had been wearing. This was consistent with appellants placement of the knife inside his waistband. Sieker also testified that the knife at issue could be in a persons waistband without inflicting injury. Although Sieker testified appellants shirt was hanging out, Sieker never explicitly testified that appellants button-down shirt (which Sieker did not otherwise describe) was unbuttoned or covering appellants waistband area.

In sum, we conclude that, apart from whether appellants shirt concealed the knife, the jury reasonably could have concluded that appellant had the knife fully concealed in his pants, that is, in his waistband. (Cf. People v. Wharton (1992) 5 Cal.App.4th 72, 75; People v. Fuentes (1976) 64 Cal.App.3d 953, 955.)

Appellant also claims there is insufficient evidence supporting his conviction because there was insufficient evidence that the knife was capable of inflicting great bodily injury or death. We reject the claim.

Penal Code section 12020, subdivision (c)(24), states, in relevant part, As used in this section, a dirk or dagger means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. (Italics added.)

In the present case, Sieker described the subject knife as a five-inch stainless steel bladed knife, fixed-blade knife with a plastic handle. Police put the knife in a sheath to prevent injury and to prevent persons from puncturing themselves. Sieker referred to the knife as sharp, and as a weapon. We note that one definition of the word weapon is something (as a club, knife, or gun) used to injure, defeat or destroy.^[3] Similarly, appellant presented evidence that the knife was a weapon. The knife was admitted in evidence and available for viewing by the jury.

Appellant concedes the knife was a weapon,^[4]and his assertion that the knife was a steak knife implies it was able to cut meat or flesh. We conclude there was sufficient evidence that appellant committed a violation of Penal Code section 12020, subdivision (a)(4), including sufficient evidence that the knife was capable of ready use as a stabbing weapon that [might] inflict great bodily injury or death.

2. The Trial Court Did Not Erroneously Exclude Evidence of Racial Profiling.

a. Pertinent Facts.

On November 1, 2006, the trial court conducted an Evidence Code section 402 hearing. During the hearing, appellant indicated he was proffering mobile digital transmissions (MDTs), and daily reports. Appellant argued the documents were admissible, inter alia, to prove that the officers in the present case contacted appellant based on racial profiling.

Appellant represented that These documents would show that the officers were all over the place running license plates and racial profiling other people, and that would impeach the officers report in that aspect. The court indicated appellant needed to identify the particular pages within the 20-page document that appellant was claiming were relevant, and the court would revisit the issue.

On November 2, 2006, the court returned to the admissibility issue outside the presence of the jury. Appellant asked about the admissibility of a few pages of the MDTs in relation to Blacks harassment. The court asked where the MDTs showed Black harassment, and appellant replied, Okay. All these are blacks.

The trial court suggested that the fact that officers stopped persons who might have been African-American did not prove racial profiling. Appellant replied, Shows more than that. It shows on [sic] unnecessary license plate checks, unnecessary license plate checks repeated on this. All these people are Blacks. Sex male, defendant Black; sex male; sex female, defendant Black; sex female, defendant Black; sex male, defendant Black; sex female, defendant Black. Its all Black people. Its just a repeated matter of harassment, harassing Black People. Women and men.

The court indicated it would not allow the inquiry at that time but would see how the evidence developed at trial. The prosecutor suggested appellant had presented no evidence as to the racial composition of the neighborhood, and the prosecutor objected that the proffered evidence was irrelevant and very prejudicial. The court replied, Im not going to allow it right now. Appellant later said, The whole neighborhood is based on different races.

b. Analysis.

Appellant claims the trial court erroneously excluded evidence of the MDTs, which was offered to prove that the officers contact with appellant was based on racial profiling. He asserts the evidence was relevant on the issue of bias, if not evidence of motive to fabricate. We reject appellants claim.

Evidence Code section 210, states, in pertinent part, that: Relevant evidence means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evidence Code section 350, states: No evidence is admissible except relevant evidence. An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance. (People v. Waidla (2000) 22 Cal.4th 690, 717.)

Appellants proffer to the trial court amounted, at best, to little more than a showing that the officers in the present case conducted license plate checks on six African-Americans. That fact, if true, did not, by itself, tend to prove that the officers engaged in racial profiling, even assuming appellants neighborhood was racially diverse.

Appellant does not expressly argue that the proffered evidence had a tendency in reason to prove that the officers fabricated the charges and/or evidence against him. Even if appellant did, we would reject the argument.

We conclude the trial court did not abuse its discretion by excluding the proffered evidence, because it was irrelevant. Moreover, exclusion of the evidence did not violate appellants right to present a defense, since the application of ordinary rules of evidence does not violate a defendants constitutional right to present evidence. (Cf. People v. Mincey (1992) 2 Cal.4th 408, 440.)^[5]

3. The Prosecutor Did Not Violate Appellants Right to Due Process.

a. Pertinent Facts.

Prior to voir dire of the prospective jurors, the prosecutor, on Wednesday, November 1, 2006, indicated that appellant had provided to the prosecutor photographs of the area of 45th and Kansas. The prosecutor then stated, The officers were in here earlier and I showed them the photographs. They indicated that the area where the defendant was actually arrested is not in the photographs, so I wanted to bring that up to the court.

Later on November 1, 2006, during appellants cross-examination of Sieker at trial, appellant asked Sieker if he had spoken to the prosecutor or anyone from the prosecutors office before Sieker testified that day. Sieker replied yes. Appellant asked what did Sieker talk about, and he replied, Just when I was supposed to show up. Sieker denied that he had spoken to the prosecutor to any extent about evidence in the present case. Appellant asked, The prosecutor never showed you these photos? and Sieker replied, Yes, but we didnt talk about them. Appellant asked, You didnt talk about them? and Sieker replied no. Appellant asked what the prosecutor said when she showed the photographs to appellant. The prosecutor objected that the question called for irrelevant hearsay, and the court sustained the objection. On Friday, November 3, 2006, appellant continued his cross-examination of Sieker, and the court subsequently excused Sieker as a witness, subject to recall. Later on November 3, 2006, the People and appellant rested.

On Monday, November 6, 2006, prior to the giving of jury instructions and prior to jury argument, appellant, at sidebar, asked the court for permission to reopen his case. Appellant represented that the prosecutor had said she had interviewed Sieker regarding the photographs; therefore, Sieker had lied when he had testified that he had not discuss[ed] the photographs with the prosecutor.

In the presence of the jury, the prosecutor asked whether appellant would stipulate that prior to trial, I showed Officer Sieker the photographs marked as defendants exhibits that you provided to me, and he showed me in one of the photographs where your arrest had taken place. Appellant rejected the proposed stipulation. At sidebar, appellant said he was not agreeing to nothing the officer did, and thats not the arrest place.

The following subsequently occurred: The Defendant: The stipulation is that she showed the officer the photo prior to trial. Thats the stipulation. [] The Court: Okay. If thats all you want, then thats fine. [] The Defendant: Yes. She showed the officer prior to trial. [] [The Prosecutor]: Thats fine. [] The Court: Thats okay. If thats what you want. [] The Defendant: Thats what I want. She interviewed the officer with the photos prior to trial. Im not stipulating to nothing. The court then stated, Counsel, same thing. You did talk to him. When you talk to somebody, thats an interview.

The following subsequently occurred in the presence of the jury: [The Prosecutor]: Mr. McKenzie, will you stipulate that I showed the photographs to the officer prior to trial? [] The Defendant: Yes, I do. The court announced that both sides had rested, and the court gave its final charge to the jury. We will present additional facts below where pertinent.

b. Analysis.

Appellant claims the prosecutor violated appellants right to due process by knowingly presenting false evidence. Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted. [Citations.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citation.] This obligation applies . . . even if the false or misleading testimony goes only to witness credibility [citations].) (People v. Morrison (2004) 34 Cal.4th 698, 716-717.)

Respondent claims appellant invited the error and therefore waived the issue when appellant refused to accept the prosecutors proposed stipulation that she showed the officer the photographs and he showed her something in reference to the photographs. However, there is no need to decide respondents claim.^[6]

In the present case, nothing in the record demonstrates that the prosecutor knew or should have known that Sieker was going to testify that he did not talk to the prosecutor before trial. Moreover, the prosecutor made an effort to correct the problem by entering into a stipulation. No error occurred.

Further, When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. [Citation.]) (People v. Dickey (2005) 35 Cal.4th 884, 909.)

Sieker erroneously testified that he did not talk with the prosecutor about the photographs before trial. However, the mere fact that a witness has testified erroneously under oath does not constitute perjury. (People v. Rutter (2006) 143 Cal.App.4th 1349, 1357.) The facts that Sieker testified erroneously, and that the error pertained to whether he previously had spoken to the prosecutor about the photographs, was arguably relevant to his credibility. However, the mere fact that an otherwise believable witness presents testimony that is in some respect(s) erroneous does not render the witness unbelievable. Moreover, this is not a case in which the prosecutor and Sieker conspired before trial that Sieker would testify that he did not talk to the prosecutor about the photographs. The prosecutor on her own initiative advised the court that she had shown the photographs to the officers, and that the officers indicated that the area where the defendant was actually arrested is not in the photographs.

Further, Siekers erroneous testimony pertained to defense photographs. These were photographs taken, after the fact, of the general area in which, according to Sieker, he had observed appellant. The photographs, which were admitted in evidence, were demonstrative evidence and spoke for themselves as to what they depicted. That fact lessens the significance of anything Sieker might have said to the prosecutor about the photographs, and reduces the possibility that Sieker erroneously testified that he did not talk to the prosecutor about them because Sieker had determined prior to trial to present false testimony concerning them.

Further still, the prosecutor represented prior to trial that the officers indicated to her that the area where the defendant was actually arrested is not in the photographs, and she later represented that an officer showed her (presumably using the photographs) where the arrest occurred. The record does not indicate that if Sieker had testified accurately, his testimony would have conflicted with other representations by the prosecutor, and the jury heard testimony on the issues concerning which the prosecutor made the above representations.

Finally, Sieker testified that he and his partner directly observed appellant in possession of the concealed dirk or dagger. In defense, appellant presented fingerprint expert testimony presumably to permit the jury to make the multiple indirect inferences that he did not touch the knife; therefore, he did not possess it; therefore, no one possessed or concealed it. During jury argument, appellant argued that Sieker was a pathological liar, and appellant referred to multiple alleged inconsistencies in Siekers testimony which, according to appellant, supported that argument. The jury, by its verdict, necessarily rejected the argument as inconsequential.

We conclude the prosecutor did not violate appellants right to due process, and there was no reasonable likelihood that the erroneous testimony could have affected the judgment of the jury. (Cf. People v. Dickey, supra, 35 Cal.4th at p. 909; Chapman v. California, supra, 386 U.S. at p. 24.)

4. No Prosecutorial Misconduct Occurred.

a. Pertinent Facts.

During closing argument, the prosecutor argued appellants argument was two-fold: (1) Sieker was lying, and misrepresented where appellant was arrested, and (2) appellant must have retrieved the knife from under the shirt. The prosecutor then stated, Let me take the knife. First of all, the officer testified on the stand that what he observed was the defendants hand in his waistband, and then the glint of metal and, with his hand going next to the wall. [] Later on, they recovered the knife that you saw in court on that wall. [] There is nothing to say that he didnt pull it out from under his shirt. In fact, the officer on the stand says, his shirt was untucked when I arrested him, but I dont recall where the shirt was at the time. If he really wanted to lie about it he would have said, it was tucked or I pulled it out underneath. [] Clearly, when the officers put the spotlight on the defendant, the action was so fast that he really wasnt paying attention to where the shirt was in relationship to his hand. . . . [] The Defendant: Objection, your Honor. Assumes facts not in evidence. [] The Court: Overruled. [] The Defendant: Assuming facts not in evidence that the officer wasnt paying attention. (Italics added.)

The prosecutor then stated, Essentially what you have here is a very reasonable interpretation of what the officer said on the stand, then the evidence you have in front of you. [Sic.] If you take a look at the clothes and the knife, there is nothing to say that the shirt was unbuttoned all the way or that his hand was underneath his shirt when he brought the knife out, so the defendants argument on that point in terms of a technicality in order to get him off doesnt work. Its not reasonable. (Italics added.)

b. Analysis.

Appellant assigns as prosecutorial misconduct the facts that, during closing argument, the prosecutor commented that (1) Sieker testified he saw appellants hand in his waistband although, according to appellant, Sieker testified he saw appellants right hand reach into the area of his waistband and remove a metallic item on his waistband, (2) Sieker testified appellants shirt was untucked when Sieker arrested him, although, apparently, according to appellant, Sieker testified the shirt was untucked when Sieker observed him, (3) when appellant removed the knife, the action was so fast that he really wasnt paying attention to where the shirt was in relationship to his hand, and (4) appellants argument about the shirt was a technicality.

Appellants assignments of error are unavailing. As to each alleged instance of misconduct, appellant failed to object that the prosecutor committed misconduct and failed to request a jury admonition, which would have cured any harm. Appellant waived any issue of prosecutorial misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016.)

Moreover, as to the merits, in People v. Hill (1998) 17 Cal.4th 800, our Supreme Court stated, The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.] (People v. Hill, supra, 17 Cal.4th at p. 819.)

Regarding the scope of permissible prosecutorial argument, we recently noted   a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience. . . . [Citation.] A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness [citation]. . . . [Citation.] [Citation.] (People v. Hill, supra, 17 Cal.4th at p.819.)

As to the first alleged instance of misconduct, we have recited in our Factual Summary, and in part 1 of our Discussion, various evidence that appellant put his hand in his waistband and removed the knife from it. This included testimony elicited from Sieker during cross-examination and in response to questions which, as posed by appellant, referred to his hand as having been in his waistband. The prosecutors challenged comment was fair comment upon the evidence.

As to the second alleged instance of misconduct, the jury heard testimony to the effect that appellants shirt was untucked when Sieker observed him, and the jury reasonably could have concluded it was untucked when Sieker later arrested him. The jury also heard testimony that Sieker did not remember the status of the shirt because it wasnt such that it was merely coming from the area of the waistband. The jury also heard Sieker testify that, because of Siekers vantage point, he could not say whether he saw appellants hand with the knife come from under the shirt. The prosecutors challenged comment was fair comment upon the evidence.

Finally, given the facts that Sieker was part of a crime suppression unit which sought to suppress robberies and aggravated assaults, and the relative simplicity of removing a knife or other weapon from a waistband, the jury reasonably could have concluded that Sieker would have been focused on appellants removal of a weapon as distinct from where his shirt was in relation to his hand. The third and fourth alleged

instances of prosecutorial misconduct were in fact fair comment on the evidence. No prosecutorial misconduct occurred.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KITCHING, J.

We concur:

KLEIN, P.J.

CROSKEY, J.

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^[1] Appellant represented himself at trial.

^[2] Penal Code section 12020, subdivision (a)(4), states, (a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [] . . . []  (4) Carries concealed upon his or her person any dirk or dagger. Subdivision (c)(24), states, As used in this section, a dirk or dagger means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.

^[3] (Merriam-Websters Collegiate Dict. (10th ed. 2001) p. 1338, italics added.)

^[4] Appellant asserts in his brief that Sieker could not see whether the weapon was actually concealed.

^[5] In light of our analysis, there is no need to reach the issue of whether the evidence was excludable under Evidence Code section 352, or whether any erroneous exclusion of the evidence was not prejudicial.

^[6] Nor is there any need to reach the issue of whether appellant waived his due process issue by failing to raise it at the time Sieker presented the challenged testimony. Respondent does not press this issue.