P. v. Shields

Filed 6/25/07 P. v. Shields CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Matthew Robert Shields appeals a judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon (Pen. Code,[1] 245, subd. (a)(1)), and finding true enhancement allegations that he had personally inflicted great bodily injury ( 12022.7, subd. (a)) and had personally used a deadly and dangerous weapon ( 667, 1192.7). We affirm.

I. BACKGROUND

Defendant and the victim in this case, Brandon Wheeler, had been friends since high school. Their friendship cooled after defendants girlfriend, Brittany Sergeant, transferred her affections to Wheeler. Defendant would wait outside Wheelers house when he was at work and threaten to beat [Wheelers] ass if he did not stop seeing Sergeant.

On January 24, 2005, Wheeler took his truck from his home in Concord to a store to get cigarettes. As he drove, he saw defendant on the sidewalk with a bicycle on Argyll Avenue.[2] Soon afterward, he saw defendant crouched down between two cars. He saw a shiny object coming toward him. The next thing he knew, he woke up at a stop sign about 80 feet further down the street. He found a police officer and told him someone had thrown a bottle at him. His face was covered in blood. His truck had a hole in the back of the rear cab window, directly behind the drivers head. Pieces of frosted glass with orange coloring, looking as if they came from a bottle of an alcoholic beverage, were scattered throughout the inside of the trucks cab and reached the bed of the pickup truck. A broken Absolut Mandarin vodka bottle with frosted glass and orange writing was found on the street.

Wheeler was later taken to a hospital and treated for injuries, which included a concussion and cuts on his head, for which he received 35 stitches. He had a metal plate put in his head, and at the time of trial he still felt constant tingling like ants are crawling all over [him] where the plate had been placed.

Wheeler admitted that in 2003, he stole several hundred dollars from his father and other family members.

Defendant testified that he had a history of hostility with Wheeler, and that Wheeler had once told defendants mother that he wanted to kill defendant. On one occasion, when defendant was in a wheelchair after an accident, Wheeler did circles around him in a street, and he once threw a can of soda from his truck at defendant. On January 24, 2005, defendant was riding his bicycle to the house of his friend Arjan Vinson, carrying a bottle of whiskey, a bottle of tequila, and a bottle of Absolut Mandarin vodka. Defendant saw Wheeler driving his truck on Solano Way and Wheeler made a rude hand gesture at him. Defendant made two turns, and again saw the truck on Argyll Street. The truck came toward him. Defendant moved from one side of the street to the other to get out of the way, but the truck moved as well to be in defendants path as if the driver was trying to hit defendant. Defendant went between two parked cars and held the vodka bottle out to fend off the truck, thinking Wheeler would not want to damage his car on the bottle. The bottle exploded as defendant held it out. The truck stopped and started to turn around as if to come back at defendant. Defendant rode straight to Vinsons house and asked to come inside and hide from Wheeler. He denied having threatened Wheeler in the past.

Defendants mother testified that Wheeler had screamed at her in 2004 that he would kill defendant. Vinson testified that when defendant arrived at his house on January 24, 2005, he seemed frightened, asked if he could put his bicycle in the back yard, and said that Wheeler had been chasing him and had tried to run him over. He told Vinson he thought Wheelers truck had hit his hand.

II. DISCUSSION

A. Request to Reread Testimony

Defendant contends the trial court erroneously refused the jurys request for a rereading of his testimony and that of Wheeler.

During deliberations, the jury submitted requests for a reading of [defendants] testimony regarding alleged incident and Brandon Wheelers testimony regarding alleged incident. The trial judge told the jury that, according to the court reporter, it would take approximately an hour and 40 minutes to reread the testimony, and went on: Now what often happens is the court will ask the jury, can they focus in on some specific part of the testimony that is particularly significant or important or relevant to your concerns. And in doing that, very often you can cut back the reread substantially. [] So what I would ask you to do, if you feel it is appropriate, to go back and discuss if that can be done or not. And if you can, you should be able to probably provide that focus through one of these request forms, and we may not have to come out and discuss it further. The jury foreperson told the judge the jury would clarify its questions, and the jury shortly thereafter submitted requests for a rereading of the [t]estimony from when Matthew Shields first saw Brandon Wheeler on Argyll to when the bottle hit the truck and the [t]estimony from when Brandon Wheeler first saw Matthew Shields on Argyll to when the bottle hit him in the head.

Section 1138 requires the trial court to satisfy the jurys requests to have testimony reread.[3] A violation of section 1138 warrants reversal only if prejudice is shown, that is, if it is reasonably probable that a result more favorable to defendant would have occurred if the challenged portions of testimony had been reread. (People v. Ainsworth (1988) 45 Cal.3d 984, 1020; see also People v. Box (2000) 23 Cal.4th 1153, 1213-1214.) However, a trial court may properly inform the jury of the amount of time it would take to rehear testimony. (People v. Hillhouse (2002) 27 Cal.4th 469, 506-507 (Hillhouse), citing People v. Anjell (1979) 100 Cal.App.3d 189, 202-203 (Anjell), disapproved on another ground in People v. Mason (1991) 52 Cal.3d 909, 943, fn. 13.) In Anjell, the jury asked to have the testimony of three witnesses reread. The trial court told them they were entitled to the rereading, but informed them of the amount of time required for each rereading, which ranged from an hour to three and a half hours. The trial court directed the jury to discuss what they needed, and told them that they were entitled to a rereading of whatever they decided. (Anjell, supra, 100 Cal.App.3d at p. 202 & fn. 4.) The Court of Appeal concluded these comments did not discourage a reading, and did not violate section 1138. (Anjell, at pp. 202-203.) In doing so, the court distinguished cases such as People v. Butler (1975) 47 Cal.App.3d 273, 279, 281, in which the trial court refused the jurys request for a rereading without any attempt to narrow the request to particular portions of the requested testimony. (Anjell, supra, 100 Cal.App.3d at p. 203.)

The trial courts directions here were similar to those in Anjell. The court did not refuse the jurys request. Instead, it informed the jury of how long it would take to read the testimony, suggested that often the readback could be reduced if the jury focused on the portion of the testimony that was relevant to its concerns, and told the jury to discuss whether or not it could do so. There was no suggestion that the jury could not receive a full reading of the testimony if it wished. The trial court did not violate section 1138.[4]

B. Jurys Request for Further Instruction

Defendant contends the trial court erred in its response to the jurys request for further instruction on self-defense. During deliberations, the jury submitted the following question to the court: If we believe that Brandon Wheeler was threatening/harrassing [sic] Matthew Shields with his truck, but we also believe that Matthew Shields lied about not throwing the bottle, does that lie negate the self-defense claim? The trial court told the jury, Answer to that, I have no answer. That is a decision for you based upon the law. The court noted that the jury would be given the written instructions and reread to the jury particular instructions that counsel had agreed were particularly relevant. Those instructions included CALJIC No. 9.11 (insulting wordsnot justification for assault), No. 5.30 (self-defense against assault), No. 5.50 (self-defenseassailed person need not retreat), No. 5.50.1 (prior threats/assaults by victim), No. 5.51 (self-defenseactual danger not necessary), and No. 5.53 (self-defense not an excuse after adversary disabled).

Defendant contends these instructions were not responsive to the jurys question and that the jury should have been instructed that it must determine what happened and if that constituted self-defense, or that even if the jury believed defendant had lied, it could still find he had acted in self-defense.

When the jury asks to be informed on any point of law arising out of the case, the trial court has a duty to help the jurors understand the legal principles that it is being asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97 . . . ; see  1138.) The satisfaction of this obligation does not always require the trial court to elaborate on standard jury instructions already given. When the instructions were full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jurys request for information. Comments that diverge from the standard jury instruction are often risky to undertake. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) (People v. Briscoe (2001) 92 Cal.App.4th 568, 589.) Like the court in Briscoe, we must determine whether the trial court abused its discretion by reiterating the standard jury instructions as it did. (Ibid.) That discretion may properly be exercised by redirecting the jury to instructions that would clarify the issue on which the jury had expressed confusion. (People v. Davis (1995) 10 Cal.4th 463, 522.) As our Supreme Court noted in Beardslee, a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (Beardslee, supra, 53 Cal.3d at p. 97.)

The trial court properly exercised its discretion. Defendant identifies no point on which the jury instructions were incomplete. In response to the jurys question, the trial court informed the jury that it must answer its own question, based on the law; it reiterated the legal principles upon which the jury must base its decision, and it provided written copies of the instructions. ~(RT 246-250)~ The trial court could reasonably conclude that no further explanation would be necessary or helpful.

C. CALJIC No. 2.28

On the first day of trial, defense counsel told the court she had received a police report that day. The report, dated February 25, 2003, indicated that Wheelers father had reported that Wheeler had been stealing money from him and his sisters and that Wheeler had no remorse. Counsel stated that Wheelers conduct showed moral turpitude and that she wanted to cross-examine Wheeler about the material, but she was concerned that she would not be able to call the officer who made the report if Wheeler denied having committed the thefts, because she had not had time to subpoena the officer. The record does not disclose when the district attorneys office received the report. At trial, Wheeler admitted having stolen money from his father and other family members.

Defendant contends that the trial court should have instructed the jury sua sponte pursuant to CALJIC No. 2.28. According to defendant, such an instruction would have informed the jury that it could take into account the prosecutions delay in producing the evidence in assessing the weight to be given the prosecutions evidence. CALJIC No. 2.28 provides in pertinent part: The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence. [] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. . . . [] Although the [Peoples] [Defendants] [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. . . . [] . . .[] If you find that the [concealment] [and] [or] [delayed disclosure] was by the prosecution, and relates to a fact of importance rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider that [concealment] [and] [or] [delayed disclosure] in determining the [[believability] [or] [weight] to be given to that particular evidence . . . .]

The trial court was not obliged to give the instruction sua sponte. Even assuming the prosecution delayed giving the report to defense counsel, the instruction did not apply to this situation. By its terms, CALJIC No. 2.28 instructs the jury that it may view with caution the particular evidence that was not disclosed in a timely manner. The complaint here was not that the prosecutor introduced evidence that had not been disclosed to the defense, but that the defense had not had time to subpoena a witness to impeach a key prosecution witness. Because Wheeler admitted the thefts, defendant had no need to call additional witnesses to impeach him. In any case, nothing in CALJIC No. 2.28 suggests that if the prosecution fails to provide impeachment evidence in a timely manner, the jury may view all of the prosecutions evidence against the defendant with caution.

D. Limitation on Cross-examination

During cross-examination, Wheeler testified that on the date of the crime he knew Vinson was a friend of defendants. Defendants counsel asked if he knew at the time where Vinson lived. The prosecutor objected on grounds of relevance. Defense counsel argued that Wheelers knowledge of Vinsons address would be relevant because Wheeler knew Vinson and defendant were friends. Her theory was that Wheeler surmised that defendant was going to Vinsons house and took a circuitous route in order to pursue defendant. The trial court excluded the evidence under Evidence Code section 352, concluding it was not directly relevant to the issues before the court and had limited probative value. Defendant contends this ruling was erroneous and deprived him of his constitutional right to confrontation.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be confronted with the witnesses against him. Its   main and essential purpose . . . is to secure for the opponent the opportunity of cross-examination.   (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (People v. Frye (1998) 18 Cal.4th 894, 946.) Thus, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) As the United States Supreme Court has stated,  the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.  (Van Arsdall, supra, 475 U.S. at p. 679; see also People v. Cornwell (2005) 37 Cal.4th 50, 95 [no confrontation clause violation in exclusion of evidence of marginal relevance].)

We see neither an abuse of discretion nor a violation of the confrontation clause in the trial courts ruling. Defendant presented evidence that Wheeler saw him from Solano Way, gestured rudely to him, and harassed him with his truck on Argyll.[5] The trial court could reasonably conclude that Wheelers knowledge of Vinsons address would add little of relevance and would risk confusing the jury.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

SEPULVEDA, J.

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

[2] Wheeler testified that he took a circuitous route through a residential neighborhood to the store because traffic on Solano Way, the most direct route, moved quickly and he had to slow down to 15 or 20 miles an hour entering the parking lot from Solanoforcing the cars behind him to slow down or stopbecause of a large bump at the entrance to the lot.

[3] Section 1138 provides: After the [jurors] have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.

[4] We do not decide whether defendant waived his section 1138 claim by acquiescing in the trial courts response to the jurys request, as respondent claims. Nor do we consider whether defendant may properly assert the jurys right to have testimony read back (see Hillhouse, supra, 27 Cal.4th at pp. 505-506), an issue the parties do not address in their briefs.

[5] Indeed, the jurys note to the court suggests that it believed Wheeler had threatened and harassed defendant with his truck.