Schauman
Filed 10/3/13 P. v. Schauman
CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD
APPELLATE DISTRICT
(Shasta)
THE
PEOPLE,
Plaintiff and Respondent,
v.
LENNART
CHRISTIAN SCHAUMAN,
Defendant and
Appellant.
C070009
(Super. Ct. No. 11F2854)
Defendant
Lennart Christian Schauman was charged with
battery
with serious bodily injury after he punched the victim, Adam Martinez, in a
nightclub, causing Martinez to fall and strike his head on the floor. Martinez
died approximately two and one-half weeks later. The jury was unable to reach a verdict on the
manslaughter charge, but found defendant guilty of battery. The trial court sentenced defendant to the
midterm of three years.
Defendant makes two arguments on appeal. The first claim is that the trial court erred
in failing to grant his request for change of venue. We shall conclude he has forfeited this claim
for failure to raise it following jury selection.
His second claim is that there was
for the trial court to instruct the jury with CALCRIM
No. 371, which informed the jury it could consider an attempt by the defendant
to create false evidence or obtain false testimony. This instruction was based upon testimony
given by defendant and his friend Anshul Khetarpal. We shall conclude there was a factual basis
for the instruction, and shall affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
On April 24, 2009,
defendant and his girlfriend at the time, Kathie Willoughby, attended a
barbecue together. Defendant’s friend
Khetarpal was also at the barbecue.
Later in the evening, the three of them, together with a friend of Willoughby’s,
took a cab to Club Ice. According to
defendant while they were at the club he saw Martinez
approach Willoughby
and get very close to her. He thought
that Willoughby
was being assaulted and that he needed to “go address the situation.†He went to Martinez,
grabbed him by the shoulder to spin him around, and punched him on the right
side of his face. Martinez
fell to the floor. Defendant grabbed Willoughby’s
hand and started to leave. They were
stopped and detained by a bouncer.
Defendant admitted to the bouncer that he hit Martinez,
and apologized for causing any problems.
Martinez
died on May 14, 2009. His death was the result of trauma from
hitting his head on the floor when he fell.
DISCUSSION
I
Change of Venue Claim Forfeited
Defendant
filed a change of venue motion prior to jury selection. The morning before jury voir dire, the trial
court denied the motion without prejudice to its renewal if problems were encountered
during jury selection. The change of
venue motion was not renewed after jury voir dire.
“ ‘[W]hen
a trial court initially denies a change of venue motion without prejudice, a
defendant must renew the motion after voir dire of the
preserve the issue for appeal. Here,
although expressly invited by the court to renew the motion after jury
selection, defendant failed to do so.’ [Citations.]†(P
342, 388-389, quoting People v.
Williams (1997) 16 Cal.4th 635, 654-655.)
As in People v. Maury, the
trial court informed defendant he could renew the motion after jury selection
if a problem arose. Accordingly,
defendant’s claim is forfeited on appeal for failure to renew the motion
following jury voir dire.
II
There Was Sufficient Evidence for C
Defendant
claims the trial court erred when it gave CALCRIM
No. 371 because there was insufficient evidence to support the
instruction. The instruction, relating
to consciousness of guilt, informed the jury:
“If
the defendant tried to create false evidence or obtain false testimony, that
conduct may show that he was aware of his guilt. If you conclude that the defendant made such
an attempt, it is up to you to decide its meaning and importance; however,
evidence of such an attempt cannot by itself prove guilt.
“If
someone other than the defendant tried to create false evidence or provide
false testimony, that conduct may show the defendant was aware of his guilt but
only if the defendant was present and knew about that conduct or, if not
present, authored the other person’s actions.
It is up to you to decide the meaning and importance of this evidence;
however, evidence of such conduct cannot prove guilt by itself.â€
The
instruction was requested by the prosecution.
“A party is entitled to a requested instruction if it is supported by
1033, 1049.) Substantial evidence is
evidence that a reasonable jury could find persuasive. (I
instruction which, while correctly stating a principle of law, has no
application to the facts of the case. [Citation.]†(P
1129.)
The
instruction here was based upon the testimony of Khetarpal. He testified that at the time of the offense
he and defendant were best friends. He
recalled getting to Club Ice from the barbecue by taxi. He had a few drinks before going to the
club. He continued to drink at the
club. He recalled seeing Willoughby in
an uncomfortable situation, and said she had a struggle with someone. He then saw defendant walking over toward
Willoughby and Martinez. He turned
around, so he did not see defendant strike Martinez.
Following
the incident, defendant was detained in front of the club. He estimated he was there for at least 15
minutes waiting for police to arrive. He
testified that while he was waiting for police he saw Khetarpal in the parking
lot. The 911 call from Club Ice was
received at 1:13 a.m. on April 25.
Police arrived on the scene at 1:16 a.m.
At
12:53 a.m. a 911 call was received from the Vagabond Inn located about two
blocks from Club Ice. Police officers
arrived at the Vagabond Inn at 12:58 a.m., where they found Khetarpal knocking
on the door of one of the rooms.
Khetarpal was placed under arrest for public intoxication at 1:00
a.m. He was transported to Shasta County
jail. He ended up in a holding cell with
defendant.
The
incident at Club Ice was captured on video, and the video was played for the
jury. The prosecutor argued that the
video showed the 911 call being made.
Working back in time from the 911 call, which was placed at 1:13 a.m.,
the prosecutor argued that the punch was thrown between 1:08 a.m. and 1:10
a.m. She then argued that Khetarpal
could not have witnessed the actions of Martinez and Willoughby just prior to
the punch because he had already been arrested at the Vagabond Inn. She then argued:
“So, if you believe that the
defendant sat in that holding cell with his buddy Anshul, told him what
happened, and Anshul just happened to, 45 days after the incident, tell Officer
Hyatt that he saw Kathie being uncomfortable and having to shove Adam away, that
would be pretty helpful to his side of the story which no one else saw.â€
Khetarpal
admitted discussing the case with defendant before Martinez died, but said he
had not discussed the case with defendant since Martinez’s death. Defendant, on the other hand, testified he
had never discussed the case with Khetarpal.
In
ruling on the instruction, the trial court concluded that each side had
circumstantial evidence from which it could argue the question. The prosecution had the fact that Khetarpal
was already in custody when defendant came into the jail, the inference that
Khetarpal was not present when the punch occurred, and the fact that defendant
and Khetarpal were best friends. The
defense had the inference that defendant and Khetarpal would not create a
conspiracy to lie when it was a documented fact that they had been in custody
at the same time. The court decided to
give the instruction because it would establish the rules by which the jury
would consider the evidence without assuming that defendant tried to create
false evidence or obtain false testimony.
Defendant
argues it was error to give the instruction because “there was no evidence
whatsoever that [defendant] conspired with [Khetarpal] to fabricate
testimony. They were simply in the same
holding cell after the incident at Club Ice and both denied discussing the
incident.†Apparently, defendant’s
argument is that the instruction may not be given unless there is direct
evidence of a conspiracy to fabricate testimony. This is incorrect. All that is required is some evidence that,
if believed by the jury, would support an inference that there was an agreement
to fabricate
testimony. (P
Cal.4th 1, 102.)
Such
circumstantial evidence was present in this case because the jury could have
inferred from the timeline of Khetarpal’s arrest vis-à -vis the punch leading to
Martinez’s death that Khetarpal’s testimony was fabricated. The jury further could have inferred that
Khetarpal and defendant conspired to present this fabricated testimony from the
facts: (1) that they were in the same
holding cell at the same time, (2) that their testimonies were not in agreement
as to whether they had discussed the case, and (3) that they were best
friends. This was sufficient evidence to
support the instruction.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
MAURO , J.
MURRAY , J.
