P. v. >Shelton>

 

 

 

 

 

 

Filed 7/18/13  P. v. Shelton 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   PETER SHELTON,                           Defendant and Appellant.

C068708   (Super. Ct. No. 09F07206)

            Defendant
Peter Shelton stabbed Joseph Davidson in front of the Stockman Club in Fair
Oaks.  Finding defendant not
guilty of attempted murder, the jury
convicted him of the lesser-included offense of attempted voluntary
manslaughter on an imperfect self-defense theory.  The jury also convicted defendant of href="http://www.fearnotlaw.com/">assault with a deadly weapon.  With respect to both convictions, the jury
found defendant inflicted great bodily injury on Davidson.  With respect to the href="http://www.mcmillanlaw.com/">attempted voluntary manslaughter conviction,
the jury found defendant personally used a deadly weapon.  The trial court sentenced defendant to serve
an aggregate term of seven years in state
prison and imposed other orders. 

            On appeal,
defendant contends:  (1) the trial court
abused its discretion and violated his constitutional right to a fair trial by
admitting into evidence testimony concerning specific instances of violent
conduct engaged in by defendant about 10 years before the incident at the
Stockman Club; and (2) assuming the trial court did not err in admitting
evidence of defendant’s prior violent conduct, his trial counsel provided
ineffective assistance by opening the door to the admission of this
evidence.  As we explain, while the trial
court abused its discretion by ruling defense counsel opened the door to
evidence of defendant’s prior violent conduct, introduction of the challenged
evidence was harmless.href="#_ftn1"
name="_ftnref1" title="">[1]  Accordingly, we affirm the judgment. 

FACTS

            Defendant
and Davidson did not like each other.  In
2006, while working as a bartender at the Stockman Club, defendant kicked
Davidson out of the bar and convinced the owner to permanently ban him from
returning.  After being removed from the
bar, Davidson challenged defendant to fight him at a park across the street.  According to Davidson, rather than follow him
across the street, defendant stood in front of the bar and “ran his
mouth.”  On another occasion, Davidson
and a friend went to a deli near the Stockman Club.  Defendant was also there.  As Davidson explained:  “[Defendant] was running his mouth saying we
needed to leave.  We need to leave.  It’s his place.  It’s his town.”  Defendant then walked outside.  Davidson followed, tapped defendant on the
shoulder, and slapped him across the face as he turned around.  Defendant walked away without
retaliating. 

            On August 19, 2009, Davidson, Jason
Flatt, Shaun Ross, and Janee McCalister were drinking at another Fair
Oaks bar called the Vent. 
After drinking for a couple of hours, they decided to go back to the
apartment Davidson shared with Flatt and Ross. 
McCalister asked to be driven to the Stockman Club so she could pick up
her bicycle.  The men agreed.  As mentioned, Davidson was banned from
entering the Stockman Club.  So was
Ross.  Flatt drove the foursome in his
pickup truck and parked in front of the bar. 
McCalister went inside.  Davidson,
Flatt, and Ross stood next to the truck. 


            While
Davidson and his roommates waited for McCalister to return with her bicycle,
defendant walked out of the Stockman Club. 
Ross greeted defendant with: 
“[H]ello, Peaches.  How are you
doing?”  Defendant no longer worked at
the Stockman Club, but nevertheless informed Davidson and Ross they would “need
to leave his bar.”  Defendant was
“staring them down” and had one hand at his waistband, “posturing like he had a
weapon.”  Davidson told defendant they
“weren’t at his bar,” explained they were waiting for McCalister, and told him
to “get back inside.”  The conversation
became heated.  Defendant repeated
several times Davidson and Ross “need[ed] to leave his bar.”  Davidson repeated:  “[T]his ain’t your bar, dude.  We are here for a reason and then we are leaving.  So leave us alone.  Go back inside and leave us alone.”  Davidson “was getting more and more worked
up.”  Ross told defendant he had “an
open-ended offer” to “step over in the park and, you know, if he wanted to
continue talking we’d go do something about it.”  At about this time, McCalister came out of
the bar and said she would be staying there. 
Ross then told Davidson and Flatt: 
“He doesn’t want to fight.  He
doesn’t want to do anything.  He just
wants to run [his] mouth.  Let’s get out
of here.” 

            As
Davidson, Flatt, and Ross were getting into the truck to leave, defendant
said:  “I’ll get you motherfuckers when
no one’s around.”  Angered by this
threat, Davidson pushed Ross out of his way and rushed defendant, pinning him
against a wall and punching him in the face. 
Within seconds, Nazra Bertelli, the Stockman Club’s doorman, tackled
both Davidson and defendant.  Davidson
fell on top of defendant.  Bertelli was
on top of Davidson and had him in a rear chokehold.  While on the ground, Davidson “felt a sudden,
sharp pain in [his] side.”  Bertelli then
got up and lifted Davidson off of the ground, still holding him in the
chokehold.  Davidson was in a “daze” and
his eyes were “rolling back in his head.” 
Seeing that his friend was in trouble, Flatt yelled to Bertelli:  “[Y]ou’re killing him, man.  You’re killing him.  Let him go.” 
Before Bertelli could do so, defendant got up and lunged at
Davidson.  Davidson felt another sharp
pain, this time in his chest.  Bertelli
then threw Davidson into the side of Flatt’s truck.  Davidson staggered upright as blood began to
stream down his shirt.  Lifting his
shirt, Davidson said to Flatt:  “[H]e
stuck me, Jay.  The fucker got me.” 

            Defendant
went back in the Stockman Club and locked the door behind him.  Flatt and Ross helped Davidson into the truck
and applied pressure to his stab wounds. 
They also restrained Davidson, who wanted to go after defendant for
stabbing him.  Law enforcement officers
arrived on scene a short time later. 
They were unable to locate defendant. 
Paramedics also arrived and took Davidson to Mercy San Juan Medical
Center.  Davidson had two stab wounds.  The first was to Davidson’s left hip.  The second was to the left side of the chest,
narrowly missing his heart.  Davidson
survived his injuries. 

            Defendant
called McCalister the day after the stabbing. 
McCalister told defendant he was in “a lot of trouble” and she was
“going to try to stay out of it.” 
Defendant asked McCalister to tell him where Davidson and his roommates
lived.  McCalister answered:  “[W]hy do you want to know where they live,
Pete? . . . [Y]ou stabbed Joe.  He almost
died.  You won.”  Defendant did not respond. 

            As
mentioned, the trial court admitted into evidence testimony concerning specific
instances of violent conduct engaged in by defendant about 10 years before he
stabbed Davidson in front of the Stockman Club. 
We describe this testimony in the discussion that follows.  For purposes of this opinion, we need not
describe defendant’s evidence.  Suffice
it to say defendant did not dispute stabbing Davidson.  Instead, he claimed self-defense.  The jury accepted that defendant honestly
believed in the need to use force against Davidson in order to defend himself,
but found either this belief was unreasonable or the amount of force used to
defend himself from Davidson’s attack was unreasonable.  Accordingly, the jury found defendant not
guilty of attempted murder and convicted him of attempted voluntary
manslaughter on the basis of imperfect self-defense. 

DISCUSSION

>Admission
of Evidence of Defendant’s Prior Violent Conduct

            Defendant
contends the trial court abused its discretion and violated his constitutional
right to a fair trial by admitting into evidence testimony concerning specific
instances of violent conduct engaged in by defendant about 10 years before the
incident at the Stockman Club.href="#_ftn2"
name="_ftnref2" title="">[2]  While we agree admission of this evidence was
an abuse of discretion, we find no prejudice. 


>Legal
Principles

            Section
1101 provides, with certain exceptions, “evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified
occasion.”  (§ 1101, subd. (a).)  One such exception is found in subdivision
(b) of this section, which provides: 
“Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, . . . intent, . . . knowledge, . . .) other than his
or her disposition to commit such an act.” 


            Another
exception is found in section 1103, which provides in relevant part:  “(a) In a criminal action, evidence of the
character or a trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct) of the victim of the
crime for which the defendant is being prosecuted is not made inadmissible by
Section 1101 if the evidence is: 
[¶]  (1) Offered by the
defendant to prove conduct of the victim in conformity with the character or
trait of character.  [¶]  (2) Offered by the prosecution to rebut
evidence adduced by the defendant under paragraph (1).  [¶] 
(b) In a criminal action, evidence of the defendant’s character for
violence or trait of character for violence (in the form of an opinion, evidence
of reputation, or evidence of specific instances of conduct) is not made
inadmissible by Section 1101 if the evidence is offered by the prosecution to
prove conduct of the defendant in conformity with the character or trait of
character and is offered after evidence that the victim had a character for
violence or a trait of character tending to show violence has been adduced by
the defendant under paragraph (1) of subdivision (a).”

>Additional
Background

            Prior to
trial, the prosecution moved to exclude evidence concerning the reason
defendant kicked Davidson out of the Stockman Club in 2006, i.e., fighting with
another patron.  Defense counsel argued
this evidence was “important to establish . . . the beginning of the
longstanding relationship between [Davidson] and [defendant] and the basis for
. . . the aggression on the part of [Davidson] towards [defendant] as . . .
this was the catalyst in terms of how the aggravated relationship began between
the two.”  Defense counsel also stated he
believed Davidson made a threat to defendant while being kicked out of the bar
and argued defendant “believed that Davidson was coming back to make good on
that threat” the night of the stabbing. 
Even though making a threat against defendant while being kicked out of
the Stockman Club could be considered evidence of Davidson’s violent character,
defense counsel made clear that this evidence was not being offered to prove
Davidson acted in conformity with that character the night of the stabbing.  Instead, it was offered under section 1101,
subdivision (b), to prove defendant’s state of mind the night of the stabbing
and Davidson’s motive for attacking defendant that night.  The trial court ruled defense counsel could
elicit testimony concerning any threat made by Davidson while being kicked out
of the bar.  The trial court also
explained that evidence Davidson was kicked out of the bar for fighting with
another patron would be admissible under section 1103, subdivision (a)(1), to
prove he acted in conformity with his violent character the night of the
stabbing, but warned defense counsel this would open the door to the
prosecution to elicit evidence of defendant’s violent character. 

            The
prosecution also moved to introduce certain incidents of defendant’s violent
conduct under section 1101, subdivision (b). 
Specifically, the prosecution sought to elicit testimony concerning an
incident in 2000 in which defendant attempted to stab a former roommate with a
knife after they got into a fight over rent.href="#_ftn3" name="_ftnref3" title="">[3]  The prosecution argued the evidence was
admissible under section 1101, subdivision (b), to prove defendant’s intent the
night of the stabbing.  Defense counsel
argued evidence of this prior incident was not admissible under section 1101, subdivision
(b), to prove intent because the “circumstances in that case are very, very
different from the circumstances in this case,” but acknowledged it “would be
appropriate” to admit this evidence under section 1103, subdivision (b), if
defendant were to introduce evidence of Davidson’s violent character under
section 1103, subdivision (a)(1).  The
trial court agreed with defense counsel, ruled the evidence inadmissible under
section 1101, subdivision (b), and warned defense counsel it would be admissible
under section 1103 should he introduce evidence of Davidson’s violent
character.  The prosecutor then informed
the trial court about another incident that also occurred in 2000, about two
weeks prior to the knife assault on defendant’s former roommate, in which
defendant held two guns to his former girlfriend’s head.  The prosecutor asked that this incident also
be admitted into evidence, as well as evidence of defendant’s “reputation for
being intimidating, scary, threatening to people in the community,” if href="http://www.mcmillanlaw.com/">defense counsel opened the door to
character evidence under section 1103. 
The trial court agreed. 

            Defense
counsel then asked for clarification regarding what evidence he could adduce
without opening the door to the character evidence he did not want admitted
against defendant.  Defense counsel
explained his position:  “If I’m
eliciting information from the witnesses about specific instances between
[Davidson] and [defendant], my feeling is I’m not opening the door because it’s
not reputation, it’s not opinion.  And
though it may be a specific incident, it’s not a specific incident to show
propensity for violence.”  The trial
court agreed:  “No, it’s showing
motive.”  The prosecutor objected:  “It doesn’t matter if [defense counsel’s]
intent is to show motive.  But if
evidence is introduced by the defense that is a prior instance of violence by
the victim, then according to [section] 1103 the door has been opened.”  The trial court disagreed:  “That’s not necessarily true because, let’s
face it, we do give jurors an instruction that tells them that certain evidence
was admitted for a limited purpose.  [¶]  And, in fact, what we can
do is we can specify why the evidence is being used.  We can tell the jurors, for example, this
evidence is being used . . . by the defense to demonstrate the presence or
absence of motive, for example.”  The
trial court did agree with the prosecution that if defense counsel introduced
evidence concerning violence between Davidson and someone other than defendant,
the door would be opened under section 1103. 


            The
prosecutor questioned Davidson about his prior confrontations with defendant
during direct examination.  As mentioned,
Davidson testified that defendant worked as a bartender at the Stockman Club in
2006.  Defendant kicked Davidson out of
the bar and convinced the owner to permanently ban him from returning.  After being removed from the bar, Davidson
challenged defendant to follow him across the street to fight him at the
park.  Instead, defendant stood in front
of the bar and “ran his mouth.”  On
another occasion, Davidson and a friend went to a deli that was near the
Stockman Club.  Defendant was also there.  He “was running his mouth” and told Davidson
to leave because:  “It’s his place.  It’s his town.”  When defendant walked outside, Davidson
followed, tapped him on the shoulder, and slapped him across the face.  Defendant walked away. 

            During
cross-examination, defense counsel also asked Davidson about these
incidents.  Then defense counsel asked
two sets of questions that caused the trial court to conclude evidence of
Davidson’s violent character was being offered to show conduct in conformity
with that character, opening the door to the admission of such evidence against
defendant under section 1103.  First,
defense counsel asked Davidson whether he had been trained in hand to hand
combat during his military service. 
Davidson responded:  “The funny
part is I had [kitchen duty] that day.” 
Second, defense counsel asked Davidson whether he was angry after being
stabbed by defendant.  Davidson
answered:  “Yup.”  Defense counsel then asked Davidson whether
he wanted to pursue defendant.  Davidson
responded:  “He has just tried to kill
me.  So yes.”  Defense counsel asked Davidson whether he was
afraid.  Davidson answered:  “I ain’t afraid of nobody.”  Defense counsel then asked:  “And you would have done anything you could
to go after [defendant] that you physically could; right?”  Davidson responded:  “If I could have.”  Finally, defense counsel asked:  “You wanted to kill [defendant]?”  Davidson answered:  “I wanted to -- wanted to go get him.  I wanted to get him and break every bone in
his body and make him pay for what he just did to me, yes.  [¶]
 Kill, no.  [¶]  He didn’t hurt -- he didn’t harm my kid.  [¶]  I
wouldn’t kill anybody unless they harmed my kid.” 

            Before
resting its case, the prosecution moved the trial court to reconsider its prior
ruling prohibiting evidence of defendant’s character for violence.  After entertaining argument on the motion,
the trial court granted the prosecution’s motion.  The trial court explained:  “[T]he case law really doesn’t cover this
particular area where you have prior incidents involving the defendant and the
victim as opposed to the victim and others to establish character
evidence.  [¶]  Now, my ruling was based on the fact that if
the defendant were aware of these incidents and aware of things occurring that
it goes towards his state of mind and the reasonableness of his response to an
attack by the victim.  So that’s why I
allowed it -- I allowed it in.  [¶]  And to be quite frank the case law seems to
suggest that perhaps my ruling was wrong. 
[¶]  Now, I’m willing to stick
with my ruling.  [¶]  The problem that I have here is this.  I think the testimony has gone further afield
than that.”  Addressing defense counsel’s
questions concerning Davidson’s state of mind after the stabbing, the trial
court explained:  “The only argument that
could be made in regards to that evidence that happened after the incident is
that -- look.  Look at this -- look at
[Davidson] and look at the steps that he would take to go after this man.  He wanted [to] go after [defendant] after he
had been stabbed to break every single bone in his body.  That is character evidence.”  Addressing defense counsel’s question
concerning combat training, the trial court stated:  “Counsel asked the victim didn’t he have hand
to hand combat in the army?  And, you
know, quite frankly -- and I -- counsel kind of left it there -- didn’t
elaborate on it.  And I think counsel
kind of knew maybe I’m getting in some murky areas here and I’m kind of running
afield of maybe the court’s ruling.”  The
trial court considered Davidson’s statement that he missed combat training
because he had kitchen duty to be “very flip and very cavalier.”  The trial court explained:  “There is only one way to term that evidence
[sic] is that this guy knows how to
use his hands.  This guy knows how to,
you know, fight people hand to hand. 
[¶]  And that would show, you know,
sort of an attenuated -- because not every person in the army who learns hand
to hand is -- is -- is a violent person. 
But in the context of this particular victim it certainly paints a
picture of him as being a violent person and having the character traits for
violence.” 

            Defense
counsel then moved for a mistrial and argued he had not violated the trial
court’s directions with respect to opening the door to evidence of defendant’s
violent character.  The trial court
denied the motion and explained:  “I tried
to be very, very fine and very precise with the evidence I was going to allow
in to go towards your client’s state of mind. 
And this evidence went far afield. 
The army evidence was far afield. 
Moreover the evidence of -- although it is evidence of this incident [>sic]. 
But it wasn’t evidence known to the defendant.  It just paints the picture of Davidson
violently, you know, going after him.” 

            When the
prosecution resumed its case, Sarah Harris was called to testify.  Harris testified about certain incidents that
happened in 2000 when she shared an apartment with her boyfriend Brody,
defendant, and defendant’s girlfriend Melissa. 
Harris witnessed defendant “push Melissa” and “smack her quite hard.”  Defendant would threaten people when “he
didn’t get his way.”  These threats
included “beating people up, shooting people, stabbing people.”  He “would get angered very easily about
little things.  Get very frustrated very
easily.”  During this time period,
defendant called himself “Tigger” and would often refer to himself in the third
person, telling people:  “[‘Y]ou don’t
want to mess with Tigger or he’ll fuck you up.[’]”  One morning, Harris awoke to the sound of
“the top rail of a pistol sliding back.” 
The sound came from the hallway outside her bedroom.  As she sat up in bed, she heard Melissa
scream.  Harris then went into the living
room and saw Melissa lying on the couch “with her hands up trying to hold
[defendant] back.  [¶]  And he was literally standing on the couch
over her with two pistols at her head.” 
Defendant was “[s]creaming at her -- something about she slept with his
best friend and she is going to die and he can’t believe she did this to
him.”  As Harris explained:  “I stood in the hallway for about 15 seconds
trying to decide what to do.  [¶]  I very slowly walk over.  I put my arms on top of his arms and told him
look.  You don’t want to do this.  Just put them down.  [¶]  He
willingly started pulling his arms down. 
I had to take the guns out of his hands. 
It took about a good two minutes to get that done.” 

            Two weeks
later, defendant and Brody got into an argument over rent money.  The argument turned into a fist fight.  During the fight, defendant pulled a knife.  Harris described “Brody being bent over the
back of the couch and he was bent over sideways and he was trying to hit
[defendant] with one hand and trying to hold him back with the other.  And [defendant] did have a knife and was
trying to stab him in the kidney.” 
Harris intervened and grabbed defendant’s arm as he tried to stab her
boyfriend.  She managed to take the knife
out of defendant’s hand, but not before Brody suffered two knife wounds.  Defendant and Brody continued to fight for
another 15 to 20 minutes.  After the
fight, as defendant was leaving the apartment, Harris told him she would be
calling the police.  Defendant
responded:  “I’ll fucking kill you if you
call the police.” 

>Analysis

            Defendant
argues the trial court abused its discretion by ruling his trial counsel opened
the door to character evidence under section 1103, subdivision (b).  The Attorney General responds by
arguing:  “Davidson’s statement that he
wanted to break every bone in [defendant’s] body after the stabbing had no
bearing on [defendant’s] state of mind -― since he had already fled the scene
and would not know whether Davidson wanted to assault him or not -― and
constituted specific act character evidence that tended to show he acted in
conformity with that character trait the evening he was stabbed.  The same is true of counsel’s questioning of
Davidson about his hand-to-hand combat training in the Army.  The picture painted by these two items of
evidence was that Davidson was a violent man who had received training in how
to inflict violence.”  We conclude
neither of these items of evidence constitutes character evidence within the
meaning of section 1103. 

            We begin
with defense counsel’s question concerning Davidson’s combat training.  As defendant points out, the prosecutor
elicited from Davidson that he was five feet seven inches tall and weighed 150
pounds at the time of the fight. 
Bertelli was six feet one inch tall and weighed around 300 pounds.  Defendant was six feet tall and weighed
around 180 pounds.  Defendant argues that
because the jury was likely to conclude Davidson was at a “great disadvantage”
in the fight, and because Davidson testified during direct examination that his
“normal doctor is at the V.A.,” defense counsel asked whether he had combat
training in the Army.  Defendant continues:  “This was never a line of questioning that
addressed any character trait for violence or suggested any conduct consistent
with such a trait.  Rather, it afforded
the jury an opportunity to more fairly assess the combatants and the
reasonableness of [defendant’s] response.” 
We conclude the question about combat training did not elicit character
evidence.  Indeed, a contrary conclusion
would suggest that anyone who joins the military and receives the required
combat training automatically has evidence of a violent character.  Such is not the case. 

            Turning to
defense counsel’s questions concerning whether Davidson was angry after being
stabbed by defendant, we find People v.
Myers (2007) 148 Cal.App.4th 546 (Myers)
to be instructive.  There, the defendant
was convicted of resisting an officer and committing a battery on that
officer.  While hitchhiking along a
freeway onramp, the defendant was stopped and ordered to submit to a pat-down
search.  The defendant ran, was tackled,
and then fought with the officer in an attempt to prevent discovery of the
methamphetamine pipe in his pants pocket. 
(Id. at p. 549.)  At trial, the defendant testified the officer
was “overly aggressive,” causing him to “‘freak[] out’” and “‘tr[y] to get
away.’”  (Id. at p. 550.)  Based
on this testimony, the trial court allowed into evidence certain instances of
the defendant’s violent conduct under section 1103.  (Id.
at pp. 550-551.)  The Court of
Appeal held this was error, explaining: 
“[S]ection 1103 contemplates that character evidence comprises something
other than evidence of conduct at the time in question, because character
evidence is used to show conduct ‘in conformity with’ his or her
character.  [Citation.]  Wigmore, on whose treatise . . .
section 1103 is based [citation], notes the relevance of character evidence is
premised on a continuity of character over
time:  ‘“Character at an earlier or
later time than that of the deed in
question is relevant only on the assumption that it was substantially unchanged
in the meantime, i.e., the offer is really of character at one period to prove character at another . . .
.”’  [Citation.]  If evidence of a victim’s conduct at the time
of the charged offense constitutes character evidence under . . .
section 1103, then every criminal defendant claiming self-defense would open
the door for evidence of his [or her] own violent character.  [S]ection 1103 cannot be read so
broadly.”  (Id. at pp. 552-553.) 

            Here,
defense counsel asked Davidson whether he was angry at defendant immediately
after being stabbed and whether he wanted to go after defendant for stabbing
him.  The Attorney General argues that,
unlike Myers, supra, 148 Cal.App.4th 546, these questions went to Davidson’s
conduct after the time in question,
i.e., the fight that led to the stabbing. 
According to the Attorney General, Davidson’s responses revealed his
violent character after the stabbing and tended to show he acted in conformity
with that character during the fight that led to the stabbing.  Defendant responds:  “It is fair to say that the fight was not
over for [Davidson] when [defendant] moved away.  It was still the time in question.” 
Defendant further argues, “the questions about his demeanor and
intentions following the fight were directly relevant to the issue of the
severity of injury incurred by [Davidson]. 
He was questioned extensively on direct examination about the nature of
his injuries, his consciousness and his degree of pain.  In that context, defense counsel’s questions
were fair and appropriate to provide the jury an honest and accurate picture of
[Davidson’s] condition at that point in time.” 
These questions concerned the stabbing incident and its immediate
aftermath.  We conclude these questions
went to Davidson’s conduct and state of mind at the time in question.  It would require us to read section 1103 too
broadly to conclude defense counsel’s questions opened the door to evidence of
defendant’s prior violent conduct. 

            The
Attorney General also argues, relying primarily on People v. Walton (1996) 42 Cal.App.4th 1004 (Walton) and People v. Clark
(1982) 130 Cal.App.3d 371 (Clark),
defense counsel opened the door to evidence of defendant’s prior violent
conduct by eliciting testimony concerning Davidson’s prior violent conduct
towards defendant.href="#_ftn4" name="_ftnref4"
title="">[4]  This is so, argues the Attorney General, even
though the trial court “incorrectly ruled that [such evidence] did not open the
door to the introduction of evidence of [defendant’s] character” because it was
offered under section 1101, subdivision (b), rather than section 1103, subdivision
(a)(1). 

            In >Walton, supra, 42 Cal.App.4th 1004, the defendant argued with the victim on
a bus and stabbed him to death.  He was
convicted of second degree murder.  (>Id. at pp. 1009-1010.)  In support of his self-defense claim, the
defendant sought to introduce evidence he previously saw the victim punch a
woman in the head.  The trial court ruled
this evidence would be admissible under section 1103, subdivision (a), but the
prosecution would then be allowed to introduce evidence of the defendant’s extensive
prior violent conduct ―- including prior stabbings -― under
subdivision (b) of that section.  In
light of this ruling, the defendant did not present any evidence of the
victim’s violent conduct.  (>Id. at pp. 1013-1014.)  On appeal, the defendant claimed the trial
court erred because the victim’s prior violent conduct was not offered under
section 1103, but rather under section 1101, subdivision (b).  (Id.
at pp. 1014-1015.)  Rejecting this
contention, the Court of Appeal explained: 
“First, because [defendant] made no such distinction in the trial court
he may not urge such a distinction on appeal. 
[¶]  Second, such an attempted
distinction is unavailing.  The identical
argument was made and rejected in [Clark,
supra, 130 Cal.App.3d at page
384].  The court stated:  ‘Defendant raised the issue of
self-defense.  He attempted to show that
at the time of the homicide [the victim] was in a violent rage and approached
him in a speedy and furious manner so that he was justified in reacting with
deadly force.  In support of this theory
he directed his case at establishing the violent character of the victim.  In view of this evidence the rebuttal
evidence introduced by the People was proper. 
[¶]  ‘Defendant argues, however,
he did not intend to prove the victim’s character for violence -― he only
sought to show his personal knowledge of the victim.  We reject such a contention.  The evidence introduced by defendant was
directly probative of the victim’s character for violent behavior on the fatal
day.  In view of this evidence neither
the court nor the prosecution was required to accept defendant’s representation
that he intended only to prove his personal knowledge of the victim.  We find no error in the introduction of the
character evidence in rebuttal.’”  (>Id. at p. 1015, quoting >Clark, supra, 130 Cal.App.3d at p. 384 [holding evidence of victim’s
peaceful character was admissible under section 1103, subdivision (a)(2), to
rebut defendant’s evidence victim had violent character].) 

            Thus, >Walton, supra, 42 Cal.App.4th 1004 and >Clark, supra, 130 Cal.App.3d 370 stand
for the proposition that where a defendant offers evidence of the victim’s
violent character in a self-defense case, and that evidence is admissible under
both section 1103, subdivision (a)(1) (allowing prosecution rejoinder under
subdivisions (a)(2) and (b) of that section), and section 1101, subdivision (b)
(allowing no such rejoinder), the trial court does not abuse its discretion by
admitting the evidence under section 1103, subdivision (a)(1), rather than
section 1101, subdivision (b).  Here, the
trial court made the opposite ruling.  It
allowed defendant to present evidence of his prior interactions with Davidson
under section 1101, subdivision (b), warned defense counsel he would open the
door to evidence of defendant’s violent character if he offered evidence of
Davidson’s violent character that went beyond the trial court’s ruling, and
agreed to give the jury a limiting instruction. 
We review for abuse of discretion a trial court’s rulings on the
admission or exclusion of evidence.  (>People v. Fuiava (2012)  53 Cal.4th 622, 667-668.)  The fact that, under Walton and Clark, it
would not have been an abuse of discretion for the trial court to have admitted
evidence of defendant’s prior interactions with Davidson under section 1103,
subdivision (a)(1), does not mean the trial court abused its discretion by
admitting the evidence under section 1101, subdivision (b).  The Attorney General has not persuaded us the
trial court’s ruling was an abuse of discretion. 

            Moreover,
even if we were to hold the trial court abused its discretion in ruling this
evidence admissible under section 1101, subdivision (b), rather than section
1103, subdivision (a)(1), we cannot affirm defendant’s convictions on this
basis.  Given how adamant defense counsel
was about not wanting to open the door to evidence of defendant’s prior violent
conduct, we have no doubt that had the trial court ruled his interactions with
Davidson opened the door to such evidence, counsel would not have offered any
evidence of the prior relationship between defendant and Davidson.  Thus, we cannot accept the Attorney General’s
argument that the fact the challenged evidence was “admissible” renders its admission
“harmless.”  Stated differently, had the
trial court ruled evidence of defendant’s prior interactions with Davidson
opened the door to evidence of defendant’s prior violent conduct, none of this
evidence would have been admitted. 

            Finally,
the Attorney General argues evidence of defendant’s violent conduct was
admissible under section 1102 because defendant’s prior interactions with
Davidson went to establish defendant’s “character for non-violence or
peacefulness.”  Not so.  Section 1102 provides:  “In a criminal action, evidence of the
defendant’s character or a trait of his [or her] character in the form of an
opinion or evidence of his [or her] reputation is not made inadmissible by
Section 1101 if such evidence is:  [¶]  (a) Offered by the defendant to prove
his [or her] conduct in conformity with such character or trait of
character.  [¶]  (b) Offered by the prosecution to rebut
evidence adduced by the defendant under subdivision (a).”  This section does not allow the admission of
specific acts to prove either good or bad character.  (1 Witkin, Cal. Evidence (5th ed. 2012)
Circumstantial Evidence, § 58, p. 436; People
v. McAlpin (1991) 53 Cal.3d 1289, 1309.) 
Defendant did not offer opinion or reputation evidence under section
1102, subdivision (a).  Nor did the
prosecution offer such evidence under subdivision (b) of this section.  This provision is irrelevant to the issues
raised on appeal. 

            In sum, the
trial court ruled that while evidence of defendant’s prior interactions with
Davidson was admissible under both section 1101, subdivision (b), and section
1103, subdivision (a)(1), this evidence would be admitted under the former
section and the jury would be instructed on the limited purpose of the
evidence.  The trial court set forth
ground rules for defense counsel to follow with respect to eliciting such
evidence and warned counsel that eliciting other evidence of Davidson’s violent
character would open the door to evidence of defendant’s prior violent conduct
under section 1103, subdivision (b).  We
cannot conclude this ruling was an abuse of the discretion the trial court
possesses in evidentiary matters.  We do
hold, however, the trial court abused its discretion by ruling defense counsel
violated the agreement concerning admission of defendant’s prior relationship
with Davidson, thereby opening the door to evidence of defendant’s prior
violent conduct.  Nevertheless, as we
explain immediately below, this error was harmless. 

>Prejudice

            Defendant
argues, and we agree, the evidence allowed to come in under section 1103,
subdivision (b), was damaging.  The fact
that this evidence was damaging does not end the inquiry.  In order to find prejudice, we must find a
reasonable probability the error affected the verdict.  (People
v. Chandler (1997) 56 Cal.App.4th 703, 711.)  On this record, there is no such
probability.  Defendant did not dispute
stabbing Davidson.  Instead, he claimed
self-defense.  The jury accepted that defendant
honestly believed in the need to use force against Davidson in order to defend
himself, but found either this belief was unreasonable or the amount of force
used to defend himself from Davidson’s attack was unreasonable.  Accordingly, the jury found defendant not
guilty of attempted murder and convicted him of attempted voluntary
manslaughter on the basis of imperfect self-defense.  There is no reasonable probability that had
the challenged evidence been excluded, the jury would have found it to be
reasonable for defendant to pull out a knife and stab Davidson twice, both
times while Davidson was being restrained by Bertelli, the Stockman Club’s
six-foot one-inch, 300-pound doorman. 
Moreover, had defendant preserved for review his contention that
admission of the challenged evidence violated his constitutional href="http://www.fearnotlaw.com/">right to a fair trial, we would also
conclude admission of this evidence was harmless beyond a reasonable
doubt.  (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d
705].) 

DISPOSITION

            The
judgment is affirmed. 

 

 

 

                                                                                           HOCH               , J.

 

 

 

We concur:

 

 

 

            ROBIE               , Acting P. J.

 

 

 

          MURRAY            , J.