Opinion
B230116
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. PIERRE KOURDOU, Defendant and Appellant.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA069909)
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
Pierre Kourdou appeals from the judgment entered following his conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced appellant to prison for three years, suspended execution of sentence, and placed him on formal probation for five years. We affirm the judgment.
FACTUAL SUMMARY
1. People's Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established that about 7:30 p.m. on December 17, 2008, Joshua Pineda, Ronnie Sanchez, and Negeen Dehesh were seated at a table in a Beverly Hills restaurant. Pineda was drinking. Appellant and his coworkers, including Ricardo Gutierrez, were seated near Pineda's group.
During direct examination, Pineda testified Sanchez was Pineda's roommate and Pineda had known him for three years. During cross-examination, Pineda testified Sanchez was like a brother to Pineda, and Pineda denied ever having any other kind of personal relationship with Sanchez. During direct examination, Sanchez testified he and Pineda lived together, Pineda was just a friend, and Sanchez had known Pineda for three years. During cross-examination, Sanchez testified he and Pineda were roommates.
While at the restaurant, appellant spoke with Dehesh. Appellant then asked if Pineda was Persian. Pineda replied, "Hell no" and said he was Hispanic and proud of it. Appellant glared at Pineda. Appellant commented about the greatness of the Persian empire. Pineda then commented about the greatness of the Mayan empire. The two commented back and forth on these issues for about 30 to 40 minutes. Appellant seemed upset. Appellant spoke with Dehesh in Farsi several times and, on one occasion, Pineda heard appellant say in Farsi a word which Pineda understood to mean "fag."
Pineda later paid the bill and stood to leave. Appellant also stood. Appellant was staring at Pineda as if appellant was waiting for him. Pineda and Sanchez walked towards their vehicle. Appellant grabbed Pineda's left wrist from behind. Pineda turned around and told appellant to let go. Appellant said, " 'Do you have a problem with Persians, you motherfucker?' " Pineda continued telling appellant to release Pineda, and Pineda pulled appellant in front of Pineda. Appellant continued cursing at Pineda, saying appellant was going to "fuck [Pineda] up."
Appellant obtained a bottle, broke it on a trash can, and stabbed Pineda in the head. Pineda, who had a background in wrestling, removed his shirts and jacket and began punching appellant. The two fought and Pineda threw appellant to the ground. Pineda saw glass on the ground and did not want to fall on the glass, so he stood over appellant. Pineda continued hitting appellant, but did so in an area in which there was no glass on the ground. Appellant continued stabbing Pineda. People intervened, appellant fled, and Sanchez called 911. Pineda did not have anything in his hand during the incident.
Pineda was bleeding profusely from his head and the odor of vinegar was emanating from his hair. Shortly after 8:30 p.m., a police officer arrived and recovered the top of a broken bottle from the area in which the fight had occurred. There was black hair and a red substance consistent with blood on the broken bottle top.
Pineda testified he was stabbed nine times. He suffered injuries to his head, face, chest, elbow, back, and right hand. At the hospital, he received 67 stitches, and received seven staples in his head.
2. Defense and Rebuttal Evidence.
In defense, appellant testified about 6:30 p.m. on December 17, 2008, appellant and coworkers, including Ricardo Gutierrez, were seated at a table at the restaurant. Appellant's group ordered a pitcher of beer. Pineda, Sanchez, and Dehesh arrived later. Appellant and his coworkers moved to a table near Pineda's table. Dehesh and appellant subsequently conversed in English but mostly in Farsi.
Appellant noticed Pineda was unhappy that appellant was talking to Dehesh. Appellant asked Dehesh if Pineda was Dehesh's boyfriend. Appellant testified "[Dehesh] said, 'no, it's not my boyfriend. It's the other gentleman friend' -- or, whatever -- 'boyfriend' -- you want to call it." After Dehesh momentarily left, appellant asked Pineda if Pineda was Persian. Pineda replied, " 'Hell, fuck, no, I'm not Persian.' " Pineda and appellant each indicated their ancestors belonged to ancient civilizations. Dehesh returned, and later Pineda, Sanchez, and Dehesh stood to leave. Appellant stood to say goodbye to Dehesh.
Pineda came around the table and stood between Dehesh and appellant while facing Dehesh. Dehesh went to her car. Appellant said to Pineda, " 'What's your problem? You know, I didn't say anything wrong to you.' " Appellant denied at trial that he touched Pineda at this point. Appellant testified "[Pineda] said, 'no, I'm going to go home' - like [Pineda] was mocking me somehow." Pineda stepped on appellant's feet and pushed appellant back. Pineda began leaving. Appellant walked with Pineda, and Pineda told appellant that appellant did not want to do that. They stopped and swore at each other and Pineda said, " 'I'm going to fuck you up.' " Appellant, using profanity, invited Pineda to try.
Gutierrez intervened and held appellant. Pineda approached Gutierrez and appellant, pushed Gutierrez away, and hit appellant in the chest, causing appellant to hit a table. Appellant picked up a bottle. Pineda took off his shirts and charged at appellant. Pineda struck appellant several times. Appellant and Pineda fell onto a bicycle, began rolling, tried to stand, but fell. Appellant never hit Pineda with the bottle. Gutierrez testified appellant and Pineda fell onto bicycles. In rebuttal, a detective testified appellant told him that, while Pineda was leaving the restaurant, appellant grabbed Pineda's hand to get his attention.
ISSUE
Appellant claims his conviction must be reversed because the trial court erroneously excluded evidence of a romantic relationship between Pineda and Sanchez.
DISCUSSION
The Trial Court Did Not Prejudicially Err by Excluding Evidence Pineda and Sanchez Were Boyfriends.
1. Pertinent Facts.
After Pineda and Sanchez testified concerning the incident, appellant, outside the presence of the jury, indicated the following to the court. Dehesh was a friend of the people who went to the restaurant. Dehesh told a prosecutor named Liu that Pineda and Sanchez were boyfriends. Appellant wanted Liu to testify to Dehesh's statement. Liu's testimony would impeach Pineda and Sanchez, because the two had testified they were roommates and not boyfriends. Appellant urged the proffered testimony was probative on the issues of credibility and bias.
The record appears to reflect Kevin C. Liu was a pretrial prosecutor in this case.
The court indicated as follows. The proposed testimony might not constitute impeachment. Moreover, if Dehesh testified on the issue, the People would be entitled to present rebuttal testimony from Pineda and Sanchez, or from someone else. The presentation would involve a matter which was not at issue or was tangential. Pineda and Sanchez already had testified they lived together.
The court indicated the probative value of the proffered testimony was "outweighed tremendously" by the undue consumption of time which would result from the presentation. The court suggested if Dehesh testified Pineda and Sanchez were boyfriends, her testimony would be hearsay and the court questioned on what basis she could testify the two were boyfriends. The court also commented the proffer was "very nebulous." The court excluded under Evidence Code section 352 the proffered testimony from Liu. We will present additional facts below where appropriate.
2. Analysis.
Appellant claims his conviction must be reversed because the trial court erroneously excluded, under Evidence Code section 352, and as hearsay, evidence of a romantic relationship between Pineda and Sanchez. Appellant argues the evidence was admissible (1) to impeach the testimony of Pineda and Sanchez by contradicting their testimony that they were merely roommates, (2) to prove Pineda had a motive for being the aggressor in the altercation, and (3) to prove Sanchez had a motive to provide false testimony. Appellant also argues the exclusion violated his constitutional rights to due process, to confrontation, and to present a defense.
Evidence Code section 352 states, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
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To the extent appellant claims Liu's proffered testimony relating Dehesh's statement was admissible to prove Pineda had a motive for being the aggressor, appellant waived the issue by failing to proffer the testimony as relevant for that purpose. (Cf. People v. Morrison (2004) 34 Cal.4th 698, 711; In re Mark C. (1992) 7 Cal.App.4th 433, 444; Evid. Code, § 354.) Similarly, to the extent appellant claims the exclusion of Liu's proffered testimony violated appellant's constitutional rights other than his right to due process, he waived those issues by failing to object on those grounds. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Rogers (1978) 21 Cal.3d 542, 548.)
As to the merits, to the extent appellant argues Liu's proffered testimony was admissible for the three previously enumerated purposes, and even assuming the proffered testimony was nonhearsay, we note the following. First, the term boyfriends is ambiguous. The term boyfriend means "1: a malefriend[.]2: a frequent or regular male companion of a girl or woman[.] 3: a male lover." (Merriam-Webster's Collegiate Dictionary (10th ed. 1995) page 137; italics added.) It is not clear which of the above two italicized meanings Dehesh intended. The proffered testimony was therefore confusing and misleading.
Second, to the extent the term boyfriends meant male friends, the fact Pineda and Sanchez were male friends was undisputed. Testimony the two were boyfriends in the sense of male friends would have been cumulative, and would have necessitated undue consumption of time, created substantial danger of undue prejudice, and confused the issues.
An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on an Evidence Code section 352 issue. (People v. Waidla (2000) 22 Cal.4th 690, 724.) To the extent the term boyfriends was, as discussed above, ambiguous or meant male friends, the court did not abuse its discretion by excluding Liu's proffered testimony relating Dehesh's statement. Moreover, the application of ordinary rules of evidence, as here, did not violate appellant's constitutional rights, including his rights to due process, to present a defense, or to confrontation. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
To the extent Dehesh, by the term boyfriends, meant male lovers and implied a romantic relationship, we assume the trial court abused its discretion by excluding Liu's proffered testimony relating Dehesh's statement as proof with respect to the three previously enumerated purposes. (See People v. Peters (1972) 23 Cal.App.3d 522, 533.) However, we disagree the trial court violated appellant's right to due process, to present a defense, or to confrontation by excluding the proffered testimony from Liu, since appellant himself testified to the effect Dehesh said Pineda and Sanchez were boyfriends. Nonetheless, even if the trial court erred, constitutionally or otherwise, by excluding Liu's proffered testimony, we conclude, for the reasons discussed below, it does not follow we must reverse the judgment.
Appellant challenges his conviction for assault with a deadly weapon. However, there is no dispute Pineda and appellant fought. Nor is there any dispute that if, during that fight, appellant assaulted Pineda with the broken bottle top by using it to stab Pineda, including using it to stab Pineda in his head, appellant committed assault with a deadly weapon. Leaving aside any mere testimony from Pineda or Sanchez that appellant stabbed Pineda with the broken bottle top, we note, as discussed below, that there was real physical evidence that this stabbing occurred.
It is undisputed Pineda was wounded during the fight. His wounds were substantial, and he received significant medical treatment for them, including for the wounds to his head. The People presented evidence appellant repeatedly stabbed Pineda. Appellant denied during his testimony that he hit Pineda with the bottle at all, but there was black hair and a red substance consistent with blood on the broken bottle top. As a result of Pineda's injuries, he received 67 stitches, and seven staples in his head. We believe there was thus strong evidence, including strong real evidence, that appellant assaulted Pineda with the broken bottle top by using it to stab Pineda, including in Pineda's head, and that appellant thereby committed assault with a deadly weapon.
We note concerning the above issue of real evidence that appellant conceded during jury argument that Pineda's injuries appeared to be more serious than appellant's wounds and, at one point during jury argument, appellant urged the sole issue in this case was whether the People had proven appellant did not act in lawful self-defense. The jury, which reached a verdict in one hour and 43 minutes, not only rejected self-defense and convicted appellant of assault with a deadly weapon but found true the allegation he personally inflicted great bodily injury upon Pineda for purposes of Penal Code section 12022.7, subdivision (a).
The jury heard the evidence Pineda and Sanchez were roommates and friends. Appellant fled the scene, evidencing consciousness of guilt. Again, appellant himself testified to the effect Dehesh said Pineda and Sanchez were boyfriends. In light of all of the above, to the extent Dehesh, by the term boyfriends, implied a romantic relationship, it is not reasonably probable the jury would not have convicted appellant of assault with a deadly weapon if the court had admitted Liu's proffered testimony relating Dehesh's alleged statement. Any erroneous exclusion of Liu's proffered testimony was not prejudicial. (Cf. People v. Babbitt (1988) 45 Cal.3d 660, 688; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
CROSKEY, J.