P. v. Barr

Filed 7/5/06 P. v. Barr CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Inyo County. Patrick K. Canfield, Judge. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Kevin Vienna and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of felony vandalism (Pen. Code § 594, subd. (a)). She was granted probation and appeals, claiming the trial court erroneously took judicial notice of the no contest pleas her brother and uncle entered and imposed an overly broad condition of probation. We reject her contentions and affirm.

Facts

On November 26, 2004, defendant's brother fought the host of an anniversary party and her uncle intervened in the fight. The victim pulled the uncle off the host and the brother and uncle left the party. A half hour later, defendant was seen by the victim and his niece hitting a car parked outside the party with a bat or stick. When the victim yelled at defendant to stop, she began hitting his car. When he tried to disarm her, she began swinging at him. She hit him on the arm as he tried to protect his face from the blows. As the victim again attempted to disarm defendant, her brother and uncle appeared and brought the victim to the ground. Defendant continued to swing at the victim while her brother and uncle assaulted him. She also hit cars owned by the host and the victim's sister. Defendant, her brother and uncle drove off in the defendant's grandmother's car. Although defendant was also charged with assaulting the victim with a deadly weapon, the jury acquitted her of that charge and of the lesser included offense of simple assault.

Issues and Discussion

1. Judicial Notice

During his opening statement, the prosecutor told the jury, without objection by defense counsel, that he anticipated that defendant's brother and uncle would be testifying that they entered pleas with respect to charges against them in connection with this incident. During his direct testimony, defendant's uncle testified, without objection by the defense, that he had been convicted of battering the victim on November 27, 2004. Defendant's brother, during both direct testimony and cross examination by defense counsel, was somewhat less forthcoming about his plea.^[1] His testimony, however, was not objected to by defense counsel. The brother also testified that he did not see the defendant while he was at the scene of the crime that night and insisted he had told an investigator before trial that she had not been there.

The prosecutor then asked the trial court to take judicial notice of both men's no contest pleas to battering the victim on November 27, 2004. Defense counsel objected on the basis of Evidence Code section 352, asserting that the evidence had no probative value in that it was duplicative of the men's testimony. The prosecutor pointed out that defendant's brother had refused to admit having entered the plea, so the evidence was not duplicative as to him. Defense counsel then asserted an additional reason why judicial notice should not be taken, i.e., that it was irrelevant to the case. The prosecutor countered that the pleas were evidence that the men were at the crime scene, bolstering the testimony of witnesses that defendant and the men were there that night. Defense counsel then asserted that there may have been a reason why either man entered the pleas they did other than the fact that they were guilty. The prosecutor responded that since both men had testified, defense counsel had had an opportunity to inquire of them as to the circumstances of their pleas. The trial court agreed with the prosecutor's assertions, adding that since defendant's defense was that she was not present at the crime scene, the evidence was, indeed, relevant and her brother had essentially denied that he had entered a plea. The trial court informed the jury that it had taken judicial notice that upon their no contest plea, defendant's brother and uncle were convicted of misdemeanor battery of the victim committed on November 27.

Defendant here contends that the trial court's ruling was an abuse of discretion. Specifically, she asserts that the evidence created an inference that she was guilty by association. First, it did not, as she denied being with her brother and uncle. Second, defendant's vandalism of the four vehicles was separate from the assault on the victim; therefore, there could have been no guilt by association. Finally, defense counsel stood mute while the prosecutor told the jury the he expected defendant's brother and uncle to testify about pleas they had entered in connection with the crimes. She did not object when defendant's uncle fulfilled that prophesy by testifying that he had been convicted of committing battery on the victim on November 27, 2004. Although, as stated, defendant's brother was less candid in his testimony about his plea/conviction, it was defense counsel who asked him, â€