Filed 12/21/17 P. v. Lantz CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

DEREK JACK LANTZ,

Defendant and Appellant.


G053818

(Super. Ct. No. 14CF0603)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
Wallin & Klarich, Stephen D. Klarich for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Derek Jack Lantz guilty of attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)), of Mitchell George and assault with a deadly weapon (§ 245, subd. (a)(1)), on Roland Morris. The jury also found the attempted murder was deliberate and premeditated (§ 664, subd. (a)), and Lantz personally used a deadly weapon (§ 12022, subd (b)(1)), and personally inflicted great bodily injury
(§ 12022.7, subd. (a)), in the commission of the attempted murder. Lantz subsequently admitted having previously suffered five robbery convictions in 1995. (See §§ 667, subds. (a), (d), (e)(2), 1170.12, subds. (b), (c)(2)(A).) The court struck four of the five prior strikes for purposes of sentencing. On the attempted murder conviction, the court sentenced Lantz to life in prison with a minimum parole eligibility of 14 years with consecutive terms of one year (§ 12022, subd. (b)(1)), three years (§ 12022.7, subd. (a), and five years (§ 667, subd. (a)). On the assault with a deadly weapon conviction, the court imposed six years (mid-term doubled), plus five years consecutive (§ 667, subd. (a)), for an aggregate sentence of 20 years plus life in prison with a minimum term of 14 years.
Lantz contends the judgment must be reversed because the prosecutor engaged in misconduct, the trial court erroneously admitted evidence, and the court erred in instructing the jury. None of his contentions have merit, and we affirm the judgment.
FACTS
I. Attempted Murder
On February 13, 2014, Nicholas Aguirre was in the area of First Street and Lyon Street in Santa Ana, visiting his homeless mother. Aguirre wanted to meet his mother’s boyfriend, Mitchell George. While walking back to the area where his mother said they would find George, Aguirre saw George and Lantz talking and walking in the direction of Aguirre and his mother. It appeared as if George and Lantz were having a normal conversation, although Aguirre could not hear what was being said. George and Lantz stopped walking about 30 feet in front of Aguirre and his mother. At that point, Lantz took out what Aguirre described as a yellow box cutter and cut the side of George’s neck, and told him, “Go to sleep.” George backed up and, as he fell to ground, asked, “‘Why did you do that?’” Lantz ran, and Aguirre called 911 on his cell phone.
George was given use immunity to testify. Immunity was granted because George had been selling marijuana. He was homeless in 2014, and remembers the incident when Lantz cut him. George had been shooting dice with “Eric” when the police told them to move from the front of the motel. As George walked to the side of the motel, he noticed Lantz, someone he had known for seven or eight years, getting closer. He and Lantz had not been arguing. George turned to yell to Eric that he was not going to shoot dice. That is when Lantz “caught [George] in the neck.” George did not see what Lantz had in his hand. He initially thought Lantz punched him, but when he pulled his hand from his neck, George saw blood and realized he had been cut. The wound to George’s neck required sutures.
Carmen Jimenez knew Lantz for about six or seven years and knew George for almost 10 years. She remembered an occasion when she was walking on First Street and saw Lantz being chased by a group of people. Lantz looked afraid. Lantz said he “took him down,” and made a slicing motion across his own throat. Lantz also said it was racial. The people giving chase said Lantz stabbed George. Jimenez ran to be with George. A few of the group chasing Lantz caught him, and a fight ensued.
The police arrived and an ambulance transported George from the scene. Once George left in the ambulance, Jimenez took the police to Lantz’s residence.
Santa Ana Police Officer Jimmy Correal responded to the scene. George was bleeding from the left side of his neck. Correal and other officers went to Lantz’s residence. Correal saw Lantz exit the residence. Lantz was shirtless, sweating profusely, and had abrasions on his back. Officer Mercer entered Lantz’s residence and returned carrying a black backpack. Correal found a yellow double edged carpet cutter inside the backpack. He identified the carpet cutter in court.
The parties stipulated the authorities swabbed the blade and handle of the “yellow knife,” took buccal swabs from Lantz, and properly maintained the samples. A forensic scientist from the Orange County Crime Lab testified a test of the swab from the blade indicated the presence of DNA from at least two individuals. At least three people contributed to the DNA on the handle.
The scientist compared the DNA samples from the blade and handle of the carpet cutter with the samples of George and Lantz. George could not be excluded as the major contributor on the blade and Lantz could not be eliminated as the minor contributor. The odds of selecting someone at random with the same DNA as the major contributor on the blade is one in one trillion. Lantz could not be eliminated as a major contributor of DNA on the handle of the carpet cutter.
II. Assault With a Deadly Weapon
Roland Morris is homeless. He believed he was homeless and living out of his car in February 2014. He said he did not remember being assaulted with a screwdriver because he suffered head trauma while housed in the county jail in March 2014, and has been on “a lot of medication.” When he returned to prison, Morris was assaulted by the same inmate who assaulted him in jail. Morris said he remembered telling a police officer he was walking on First Street when he was assaulted by “Derek,” but he does not remember “Derek” attempting to stab him in the head with a Phillips screwdriver.
In February 2014, Morris was using a narcotic for pain and taking coke, methamphetamine, and “whatever.” He was probably selling drugs at the time as well.
The day after the incident involving George, Correal contacted Morris and interviewed him. Morris’s recorded statement to the police was played for the jury. Morris identified a photograph of “Derek” during the interview, but the photograph was not admitted into evidence.
Morris spoke about an incident that occurred about 5:30 p.m., two Sundays prior to February 14, 2014. He was by a thrift store. Jimenez was within sight. Morris said “Derek” was “just kind of like following” him that day. “Derek” wanted Morris to give him a ride to Firestone so he could get a loan. Morris said he would not drive to Firestone and for “Derek” to ask him again the next day. “Derek” had a screwdriver and lunged at Morris with his right hand. Morris felt something hit him on the side of his face, causing him to fall.
Jimenez knows Morris and Lantz. She said they all “hang out” on the same block. She was on one side of First Street, watching as Lantz and Morris were on the other side of the street, walking and talking. Then, “out of nowhere,” Lantz “tried to slice” Morris’s face with what Jimenez believed was a screwdriver.
DISCUSSION
I. Prosecutorial Misconduct
Morris’s recorded February 2014 interview with Correal was admitted into evidence. During that interview, Morris described having been attacked by Lantz a couple of weeks earlier. At trial, Morris repeatedly claimed not to recall the attack. He said his lack of memory was due to his having suffered injury to his head while in jail and being on “a lot of medication” as a result. On redirect examination, the prosecutor asked Morris why he thought he was assaulted in the jail. Morris said he was beaten by “some gang members” and he is not a member of a gang. In response to a similar question concerning his purportedly having been assaulted in prison, Morris said it was for the same reason; he is not a member of a gang. Then the prosecutor asked if the assault had anything to do with the present case. Morris answered, “I don’t know. Probably could. I don’t know. I don’t know.” When asked why, Morris said three more times he did not know. Immediately thereafter, the prosecutor asked Morris the following question: “Do you remember writing to me that you didn’t know what is going on, but ‘I have been beaten up, hospitalized over this case?’” Defense counsel objected. The court and counsel conferred in chambers, where defense counsel stated the question was improper impeachment. Lantz now contends the prosecutor committed misconduct by introducing evidence she knew to be false.
“‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]’” (People v. Friend (2009) 47 Cal.4th 1, 29.) It is misconduct for a prosecutor to intentionally introduce false evidence. (See People v. Kasim (1997) 56 Cal.App.4th 1360, 1384 [prosecutor’s duty to correct false testimony].)
Generally, a defendant must object to the alleged misconduct at trial and request the jury be admonished to preserve the issue for appeal. (People v. Brown (2003) 31 Cal.4th 518, 553.) “‘A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if “‘an admonition would not have cured the harm caused by the misconduct.’” [Citation.]’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
Lantz did not object to this brief line of inquiry on grounds of misconduct. The issue has been forfeited. Contrary to Lantz’s assertion, an objection and admonishment would not have been futile. Had the court admonished the jury not to consider Morris’s statement that a beating “probably could” have been because of the present case, as there are no facts to support Morris’s speculation, no possible harmful fallout from Morris’s statement would have existed. We presume the jury would have followed such an admonishment. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) We consider the misconduct issue in any event because Lantz also alleges counsel was ineffective for failing to object. (Cf. People v. Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
In a chambers conference held in response to the prosecutor’s request to introduce Morris’s recorded interview into evidence, the prosecutor stated she had no knowledge of Morris having suffered a head injury in jail. It is evident she believed he was being untruthful about his inability to recall the charged incident. In fact, her basis for asking the court to admit Morris’s recorded statement as a prior inconsistent statement, in addition to requesting its admission as a prior recorded statement, was her belief Morris was not telling the truth about his memory loss. (Evid. Code, § 1235; People v. Homick (2012) 55 Cal.4th 816, 859 [statement qualifies under Evidence Code section 1235 when “‘“a witness’s claim of lack of memory amounts to deliberate evasion”’”].) The prosecutor said her investigator called the jail and there were “no reports of any incidents of any head trauma.” The court agreed to defense counsel’s request to cross-examine Morris before the recording of his statement would be played for the jury as Morris’s past recollection recorded. (Evid. Code, § 1237.)
In the chambers conference prompted by defense counsel’s objection regarding a letter purportedly written to the prosecutor by Morris, the prosecutor stated she had not planned to get into this area of examination. She argued defense counsel had opened the door, presumably by asking Morris if he was afraid of Lantz. In connection with Morris’s claim of having been assaulted in jail, she said, “Now, I don’t know if he reported an assault. I don’t know if he reported to the jail that he slipped and fell and banged his own head. I have no idea what he did or if anything happened to him in the jail facility. But if he is testifying that something did happen to him in the jail facility, I think that it is - - I think that it’s fair game for me to ask why he thinks he got assaulted, and how that could be possibly affecting his testimony.” The court sustained Lantz’s objection.
Even if we were to conclude the prosecutor engaged in misconduct in asking Morris what he thought the reason was for his being assaulted in jail and prison, and we do not, any such error was harmless. Lantz argues the effect of the very brief questioning implied Lantz is a violent person, affiliated with gangs, and could pull strings in the jail and prison to have Morris beaten. The evidence of Lantz’s unprovoked assaults on Morris and George demonstrated Lantz’s violent nature much more convincingly than the tenuous inference Lantz asserts could be drawn from Morris’s claimed beatings in jail and prison. Moreover, there was no evidence suggesting Lantz was a gang member or had any affiliation with any gang, much less that he could arrange to have someone beaten in jail and prison by a member of some unknown gang. The only mention of a gang anywhere in the trial was Morris’s statement that he was beaten in jail and prison because he was not affiliated with any gang. Even his statement the attack in prison “probably could” have been related to the present matter was substantially undercut by his repeated statement he did not know why he was assaulted. In addition, Morris did not answer the question about the letter prior to the court sustaining the objection. Regardless, the court instructed the jury attorney’s questions are not evidence, not to assume something is true because an attorney asked a question suggesting something to be true, and to ignore a question to which an objection is sustained.
II. Evidence of Uncharged Assault on Flanary
Prior to trial, the prosecutor filed a motion seeking to introduce evidence of an uncharged assault on Johnny Flanary by Lantz on January 8, 2014. Defense counsel objected, arguing the evidence was not admissible under Evidence Code sections 1101 and 352.
The prosecutor informed the court her investigator interviewed a witness, Ellison, who saw Lantz stab Flanary. She further stated Morris was a witness to the assault on Flanary and the responding officer took spontaneous statements from Flanary about someone stabbing him. Although the tape of the 911 call had been destroyed, the prosecutor said the dispatchers were available to testify.
The prosecutor argued the evidence was admissible to establish (1) Lantz had a common scheme and plan, (2) Lantz’s intent, and (3) the lack of self-defense. According to the prosecutor, Lantz committed all three offenses in a short period of time, in the same area, and with the same pattern of conduct.
The court held the evidence was admissible because it negated self-defense, a defense Lantz referred to when he was interviewed by police. Additionally, the court noted all the victims are black and the assaults are all close in time to each other and take place in the same area. The court found the assaults are all “shockingly alike.”
The evidence at trial was less extensive. Flanary did not testify. Neither did Ellison. The dispatchers did not testify either. The officer who responded to the 911 call on January 8, 2014, Santa Ana Police Officer Gregory Stys, said he went to the 1600 block of East First Street in Santa Ana, where he encountered Flanary. Flanary was bleeding “a lot” from what appeared to be a puncture wound to his neck, one to his abdomen, and one to his back. Stys said the wounds were consistent with injuries caused by a knife. Flanary was agitated and said he was standing on the corner, talking to a friend, when he was stabbed. He did not see who stabbed him or what type of weapon was used.
Morris testified he knew Flanary but he does not recall ever seeing anyone assault Flanary. In the recording of his interview with police, Morris was asked what happened when “Johnny” got stabbed. Morris responded, “We was [sic] just walking, down by the mortuary . . . stop right there, then all of a sudden, here he comes, he ended up Carnation, you know Carnation? . . . [T]hen Johnny came over like, you know, ‘Yeah, man, I heard about you, blah blah’ talking about some trash and so uh, you know what I’m saying they’re talking about you man. So I uh, so here he comes he just looked at me walking like this then all of a sudden it looked like, you know like shot put? Wham! Like that.” Morris said the assailant had a knife, flat on the end, and tried to stab Flanary at least 12 times. Morris placed the time of the incident about four weeks prior to his February 14, 2014, interview. Morris did not specifically identify Lantz as the attacker.
As a general rule, “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.” (Evid. Code, § 1101, subd. (a).) However, this provision does not prohibit “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) We review the court’s decision admitting evidence of other crimes for an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 122.)
Lantz contends the court erred in admitting the evidence of his assault on Flanary to show his attack on George was not in self-defense because the only evidence linking him to the assault on Flanary did not come from a witness; it came from a recording of an interview with a witness (Morris) who claimed to have memory problems. His argument overlooks the court’s decision to admit evidence pursuant to Evidence Code section 1101, subdivision (b), must be viewed in light of the offer of proof at the time the ruling was made. (People v. Hartsch (2010) 49 Cal.4th 472, 491.)
As noted above, at the time the court ruled on the prosecutor’s motion to admit evidence of the assault on Flanary, it was thought Ellison saw Lantz attack Flanary. In addition, Morris was expected to testify to having seen the same attack. Of course, this was before Morris testified he had memory problems.
“‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, italics added.) Here, three times in roughly a month period, Lantz attempted to stab a black male in the neck or face. All three acts appeared to be unprovoked. The proposed evidence supported the trial court’s decision to admit the evidence to negate Lantz’s claim of self-defense.
The issue of whether the evidence actually introduced was proper under Evidence Code sections 1101, subdivision (b), and 352 is another matter. The Attorney General concedes the evidence admitted on the uncharged assault “was not particularly strong due to Ellison’s absence and Morris’s convenient memory loss.” In Morris’s recorded statement, he spoke to Correal about having been attacked. Then Correal asked Morris to tell him “what happened when your buddy, Johnny, got stabbed.” Morris described an attack on Johnny without naming the culprit. When Correal asked questions during Morris’s recounting of the incident, Correal did not mention Lantz by name, and Morris used the pronoun “he.” The only inference where Lantz was the “he” that Morris and Correal spoke of must be drawn from the fact they had just finished talking about Morris having been attacked by a person he knew as “Derek.”
Lantz is precluded from raising the issue on appeal because he did not object to this limited version of the evidence in support of the attack on Flanary. “To preserve any objection to the evidence based on a deviation from the offer of proof, it [is] incumbent upon defendant to object at the time the evidence [is] introduced.” (People v. Ramos (2013) 216 Cal.App.4th 195, 208.)
III. Jury Instruction
The court gave the jury some general instructions before evidence was heard. Among those instructions, the court told the jury not to use the Internet in connection with the case. To drive home this point, the court told a story about a murder trial where a juror googled the name of someone mentioned during the testimony. The court said a mistrial was declared due to the misconduct of the juror, requiring the trial process to start over again with a new jury. Contrary to Lantz’s assertion, the court’s story did not violate People v. Gainer (1977) 19 Cal.3d 840 (Gainer).
Gainer involved a court’s instructions to the jury upon being informed the jury did not agree on a verdict. (Gainer, supra, 19 Cal.3d at p. 840.) The court instructed the jury in what is commonly referred to as an Allen instruction; an attempt by the court to obtain a unanimous jury verdict when the jury has stated it cannot agree. The California Supreme Court found such instructions “inject illegitimate considerations into the jury debates as an appeal to dissenting jurors to abandon their own judgment of the case against the accused.” (Id. at p. 849.) Consequently, the Supreme Court held that an instruction stating or implying the matter must be retried if the jury fails to reach a verdict is error. (Id. at p. 852.)
The court’s pre-evidence instruction to the jury explaining the consequences of juror misconduct in no way urged the jury to reach a verdict. The court’s story about the consequences of juror misconduct was not error.
IV. Cumulative Error
Lastly, Lantz argues the cumulative effect of the alleged errors denied him due process under the federal Constitution. We need not address this issue as we have concluded the court did not err in instructing the jury, or in admitting evidence pursuant to Evidence Code section 1101, subdivision (b), and even if there was prosecutorial misconduct, it was harmless. Thus, there is no cumulative error.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.