Opinion
A131147
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CURTIS BIGGS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR270888)
Defendant Christopher Curtis Biggs appeals the judgment imposed following his jury-trial conviction for assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a)(1). Defendant contends the judgment must be reversed on the following grounds: (1) the trial court failed to instruct the jury sua sponte on the lesser included offense of simple assault; (2) the court erred by admitting testimony that the physical altercation between defendant and the victim occurred after the victim accused defendant of rape; (3) cumulative error. Our review of defendant's contentions discloses no grounds to reverse, accordingly, we affirm.
Further statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL BACKGROUND
In April 2010, the District Attorney of Solano County (DA) filed an information alleging defendant committed assault with a deadly weapon, by means likely to produce grievous bodily injury, a felony in violation of section 245, subdivision (a)(1). The information also alleged defendant did not remain free from prison custody for five years after suffering a prior conviction, within the meaning of section 667.5.
After initially entering a plea of no contest in return for a probationary sentence, defendant was permitted to withdraw his plea and the matter was set for trial. Trial was held in December 2010. The jury returned a guilty verdict on the charge of assault with a deadly weapon. Thereafter, the trial court held a bench trial and found true the prior conviction allegation under section 667.5. The court held a sentencing hearing on January 14, 2011. At the sentencing hearing, the court imposed the mid-term of three years on the offense of conviction and a consecutive one-year term on the prior conviction allegation, for a total term of four years imprisonment. Defendant filed a timely notice of appeal on February 7, 2011.
FACTS
The incident in question occurred in the early morning hours of September 27, 2009, following a night of heavy drinking at a wedding party attended by defendant and the victim, Brett Deadrich, among others. At trial, the prosecution presented testimony of Deadrich and Vince Nettles, a wedding guest and eyewitness to the altercation between Deadrich and defendant, as well testimony from two City of Suisun police officers.
Deadrich testified that on September 26, 2009, he attended the wedding of Bryce and Erika Krysteks in Vacaville. At about 11:00 p.m., the Krysteks, Deadrich, defendant, and several other guests left the reception and were driven, by limousine, to the Krysteks' home in Suisun City. The Krysteks lived in a trailer rented from defendant and defendant lived in the trailer next to them. When the limousine arrived at the Krysteks' trailer, everyone went inside. R., a bridesmaid who rode in the limousine, was so intoxicated that she "was incoherent, barely even able to speak," according to Deadrich. Two or three of the guests helped R. into the trailer and placed her on a pull-out bed in the living area. After a few minutes, all the guests except defendant left the trailer to smoke and socialize under an overhang beside the trailer. Time passed and Vince Nettles went back inside the trailer to get a soft drink. Nettles exited the trailer and told the others to "come back inside and look at this." Deadrich, Nettles and another male wedding guest entered the trailer, where Deadrich observed defendant "standing upright, with [R.]'s feet above his shoulders, thrusting his hips back and forth towards her legs." R. was not responding. Deadrich told defendant to stop and defendant pulled up his pants. Deadrich accused defendant of raping R. Defendant denied the allegation, started "squaring up," threw a punch at Deadrich and missed. Defendant swung again and hit Deadrich. Deadrich fought back, hit defendant in the face, and a fist fight ensued inside the trailer.
Deadrich testified that he left the trailer and ran toward the trailer park exit when defendant threatened to get a gun. Defendant gave chase. Near the exit, Deadrich turned to face defendant and saw that defendant had nothing in his hands. Deadrich and defendant started fighting again but a short time later they stopped. After the fight stopped, defendant tried to shake Deadrich's hand, making it "seem like everything was cool, . . . that it was over, it was done with." At this point, the guests observing the fight started heading back to the Krysteks' trailer. Defendant went into his trailer. Moments later, Deadrich saw defendant emerge from his trailer with a long silver object in his hand. Deadrich believed defendant had a gun and ran towards the Krysteks' trailer. When Deadrich reached the trailer he could not open the door. He looked back to see "where [defendant] was at." At that moment, defendant swiped Deadrich across the head with a weapon held in his right hand, inflicting a gash above Deadrich's left eye that required about 20 stitches. After defendant swiped Deadrich with the weapon, Deadrich opened the trailer door and locked himself in the bathroom. Deadrich did not see what defendant swiped him with: some people were yelling that defendant had a hammer and Deadrich subsequently learned defendant was holding a knife in his hand.
Vince Nettles' testimony was largely corroborative of Deadrich's. Nettles, Deadrich and defendant were friends. On the evening in question, Nettles was socializing with the group outside the Krysteks' trailer. At some point, he left the group and walked into the living room of the Krysteks' trailer where he observed defendant on the sofa with one of the bridesmaids. Nettles turned around, went back outside and announced to the others, "Hey, [defendant] is in there doing something with [R.]. I can't be here for this." Deadrich and the others went inside. Nettles heard scuffling noises in the trailer. Nettles went back inside and saw defendant and Deadrich yelling at each other. Defendant yelled, "You're saying I raped her? How are you going to say something like that? I have a daughter." Deadrich yelled, "I saw you." Then fists began to fly. Defendant and Deadrich ran outside and resumed fighting. Deadrich was winning the fight and placed defendant in a headlock and said, "I don't want to fight." Defendant replied, "You calling me a rapist?" They continued to argue and the fight stopped. Defendant told Deadrich to leave the property. Then Nettles heard defendant say he was going to grab a weapon from his trailer. Nettles told defendant that if he (defendant) came back with a weapon then he (Nettles) was going to call the police. Moments later, defendant came out of his trailer with something in his hands. Nettles called the police. Deadrich ran towards the Krysteks' trailer, where he and defendant "got jammed up at the front entryway" before the door opened and Deadrich "fell inside."
City of Suisun Police Officer Ronald Aiello testified he was dispatched to the trailer park upon information that a white male in a "wife-beater" style T-shirt was waving a knife around wildly. When he arrived, Aiello saw people coming out of the trailer and they began yelling "He's in there, he's got a knife, and he's raping her." The door was open, and inside the trailer Aiello could see defendant holding a knife out like a sword in his right hand. Defendant (Biggs) was bleeding. Aiello could also see a body lying on the sofa covered with blankets. Aiello entered the trailer and ordered defendant to drop the knife. At first, defendant tried to hide the knife behind his back, then he "just sat down and dropped the knife at his feet." At that point, the victim came out of the back bedroom; he had a laceration on his head and was bleeding over his face. Aiello noticed that the female lying on the couch did not appear to be conscious.
Defendant testified in his own defense. Defendant admitted he was convicted in 2003 for possession of a handgun and methamphetamine. Defendant attended the Krysteks' wedding with R. and had a lot to drink. Everyone, including Deadrich, was drinking during the two-hour ride to the Krysteks' residence. When the limousine arrived at the Krysteks' trailer he assisted R. into the house. The Krysteks went to bed. Everyone else went outside to smoke, leaving defendant and R. alone inside in the living room. They started talking about how great a night it had been and then began to engage in consensual sex. R. was awake, although both she and defendant were very drunk. After defendant and R. had intercourse, defendant noticed R. was starting to pass out, so he stood up from the bed. Just then, Deadrich and two other male guests ran in to the trailer. Deadrich said, "You fucking raped her" and defendant replied, "No, I didn't. I wouldn't even do that. It's not in my character." Defendant told Deadrich he wanted him off the property. Deadrich pushed defendant against the ping-pong table and started hitting him. They began fighting and at some point Deadrich went outside. Defendant followed, and they continued fighting outside the trailer. During the fight, defendant suffered a dislocated left shoulder and when the fight broke up he was unable to move his left arm. Defendant was also bleeding from the face. Defendant feared for his life because he was badly hurt and everyone was going back towards the Krysteks' trailer to continue a party on his property. Defendant wanted everyone to leave, so he went to his trailer and grabbed a knife, which he placed in his left hand despite the injury to his left shoulder. Defendant only retrieved the knife for protection and to keep people at bay. He did not raise the knife or use it in a threatening manner.
When he went back outside, defendant saw Deadrich going back into the Krysteks' trailer and said, "What do you think you're doing. " He asked Deadrich to leave the property. Deadrich continued to climb the stairs to the trailer. Defendant "wasn't going to have that," so he punched Deadrich on the head with his right hand. Defendant held nothing in his hand when he punched Deadrich but he was wearing a ring.
After defendant punched Deadrich, the door to the trailer opened and Deadrich entered and ran to the bathroom. Defendant followed him inside and began banging on the bathroom door, demanding that Deadrich get out of his house. When defendant heard the police arrive, he walked away from the bathroom door towards the living area. When he encountered the police officer, defendant was still holding the knife down by his side in his left hand.
After defendant testified, the defense rested. In rebuttal, the prosecution called Suisun City Police Officer Jonathan Platzner. Officer Platzner testified that when he arrived at the scene on the night in question, defendant had already been taken into custody. Later, Platzner gave defendant Miranda warnings at the hospital where defendant was taken for treatment. Defendant gave conflicting statements about what happened that night, at one point saying he didn't remember anything and at other times he talked about being in a fight with Deadrich. Also, defendant had to be restrained so that medical personnel could draw a blood sample. Defendant also fought with medical staff when they attempted to exchange a clean towel for the blood-soaked towel defendant carried from the ambulance.
DISCUSSION
A. Lesser Included Offense
Defendant contends the trial court erred by failing to instruct sua sponte on the lesser-included offense of simple assault. We conclude that any error on this point was harmless.
"An instruction on a lesser included offense must be given only when . . . [there is] substantial evidence of the lesser included offense, that is, 'evidence from which a rational trier of fact could find beyond a reasonable doubt' that the defendant committed the lesser offense. (Citation.)" (People v. Mendoza (2000) 24 Cal.4th 130, 174.) "Speculation is insufficient to require the giving of an instruction on a lesser included offense. (Citations.)" (Ibid.)Conversely, "a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. (Citations.)" (Ibid.)
"[S]imple assault (§ 240) is a lesser included offense of aggravated assault (§ 241, subd. (a)(1) . . . [and] one cannot commit the latter offenses without also committing a simple assault." (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 [noting assault with a deadly weapon is nothing more than an assault involving use of a deadly weapon or force likely to produce great bodily injury].) Accordingly, the question is whether a reasonable jury could have found that defendant committed only a simple assault and not an assault with a deadly or dangerous weapon or with force likely to produce great bodily injury. The answer is "yes." Simply put, if the jury had believed defendant's testimony in its entirety and rejected all evidence to the contrary, it could have found defendant committed only a simple assault on the basis that defendant held the knife in his left arm, which had been immobilized in the preceding fist fight, and struck the victim on the head with his right hand.
However, even if the trial court erred by failing to instruct the jury sua sponte on simple assault, reversal is not warranted. The trial court's failure to instruct sua sponte on a lesser included offense in a non-capital case does not implicate any right under the United States Constitution and is at most an error of California law alone subject to the Watson harmless error analysis, which does not warrant reversal "unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Citations.)" (People v. Breverman (1998) 19 Cal.4th 142, 165.) Under the Watson standard, our examination of the record "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Id. at p. 177 [italics added].)
People v. Watson (1956) 46 Cal.2d 818.
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Here, even if the jury had received a simple assault instruction, the state of the evidence is such that there is no reasonable probability the jury would have returned a different verdict. Indeed, the physical and testimonial evidence that defendant used a knife in the assault was particularly strong and mutually corroborative. Defendant admitted he carried a knife into the final confrontation with Deadrich, who testified defendant "swiped" him with a weapon that defendant held in his right hand. Moreover, the gash defendant opened above the victim's left eye required about 20 stitches, an injury consistent with a wound inflicted by the blade of a knife as opposed to a punch inflicted with a closed fist. In addition, Officer Aiello testified that he responded to reports of a white male waiving a knife around wildly and saw defendant inside the trailer holding the knife out like a sword in his right hand. On the other hand, the only evidence that could support a verdict of simple assault was defendant's uncorroborated testimony that he held the knife in an unthreatening manner in his left hand and punched defendant with his right hand. Patently, the jury did not find defendant credible on this point because it found he used a weapon in the assault. In sum, we conclude that on this record there is no reasonable probability the court's failure to instruct sua sponte on simple assault affected the outcome. Therefore, any error on this point was harmless. (See People v. Breverman, supra, 19 Cal.4th at p. 165.)
B. Evidence of the Rape Accusation
1. Background
At a pre-trial hearing, defense counsel sought to exclude testimony regarding the circumstances that precipitated the fight between Deadrich and defendant. The following colloquy occurred: "Court: Any other potential evidentiary issues? Prosecution: There is one issue. I know the Court is somewhat familiar with this case because of the discussions, but I think Mr. Naratil is going to ask, and I would object, to keep out the information about how this incident started—where they come home from a wedding; they're all intoxicated, all the individuals involved; and my victim sees [defendant] in what he—what appears to him as raping one of the individuals that's in the residence. He—a fight ensues over this. . . . [¶] . . . . [¶] Defense: Any testimony regarding an alleged rape . . . that occurred. The testimony is going to be that there was some contact between [defendant] and another female, and that's how this . . . altercation ensues, that the victim in this case, Mr. Deadrich, accused [defendant] of raping this girl. . . . Mr. Deadrich did not see any sexual act. He saw some movement. He saw them together, lying on a bed, and that's it. . . . So under 352, again, this is—there is no rape charge in this case. So under 352, your Honor, I just think that it's highly prejudicial for the prosecution and for Mr. Deadrich and any other witnesses to throw in the word 'rape' when there is no proof that it occurred, number one. There is no witnesses that saw it. There is no witnesses that are going to come in and say that that occurred. And two, it is an uncharged conduct. Court: Well, I know that from the probation report that was prepared, it says here— maybe it's right or maybe it's wrong, I don't know, but it says here—we're talking about our complaining witness. He says he was in the garage and one of the male occupants came out of the house and told the victim the defendant was raping R.S., who was passed out. That's not being offered for its truth. It's being offered to explain the behavior of the complaining witness when he was informed of that. . . . And then he goes in and sees what he sees. Prosecution: Right. But I think what [defense counsel] is going to argue at some point is that when [defendant] goes in and gets a weapon and comes out and strikes the victim, that it's in self-defense of that altercation. I don't know how the jury is going to be able to hear about an altercation, but not about how it starts and why the altercation begins in the first place, and then get a self-defense instruction on what [defendant] did afterward. I think you have to hear it in total or you only hear the part where [defendant] gets a weapon and hits the victim. Defense: . . . [O]bviously, the importance of an altercation occurring . . . or an accusation of some sort as a start of this fight is important to the case from both the prosecution's point of view and from my point of view. . . . My only concern, though, is throwing around the 'rape' word in this trial that's not a rape trial. It's highly prejudicial to my client. I think we can get around that by just telling the jury that there was a disagreement between Mr. Deadrich and [defendant], and that's how this started, and just leave it at that. There is a disagreement about what had occurred, and its not important to the jury to know that it was a rape or not, just that it was a disagreement. There was a disagreement, and that's how this fight ensued. [¶] . . . [¶] Prosecution: Well, I think the problem with that is that [defendant] ends up with some pretty good injuries. I mean, [defense counsel] provided me with the photographs from— I mean, it looks like he has two black eyes and some pretty good bruising. I think this jury needs to know what set off my victim to cause him to beat up [defendant]. Otherwise, if it's just a disagreement, it could be anything like they were fighting over a bottle of beer, and they decided to my victim decided to beat up [defendant]. . . . I think it puts this case in a different light. Court: What's the defense in this case? Defense: Self-defense, your Honor. [¶] . . . [¶] Court: All right. Well, given the fact that self-defense is the defense, we can't present the case to the jury in a vacuum. What happened happened. The request to limit it in that fashion first off, I don't think it's appropriate for a Court to tell jurors, 'This is a disagreement.' That's telling them something that's factually—I mean, technically, I guess it's correct, but it's certainly misleading as to what's really going on here, and it certainly will explain the behaviors of everybody involved here because—well, anyway, that request is denied then. You can both go into the actual details of the event which led to these charges."
2. Analysis
Defendant contends that, pursuant to Evidence Code, Section 352 ("section 352"), the trial court should have excluded testimony involving allegations defendant committed rape. Defendant further asserts that rather than admitting the rape allegation evidence, the trial court should have accepted defense counsel's request to simply instruct the jury "that Deadrich and [defendant] had a disagreement which erupted into a fist-fight."
Regarding the latter assertion, " '[t]he general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness." (People v. Schied (1997) 16 Cal.4th 1, 17 [recognizing the "descriptive richness" and "persuasive power" of evidence compared to the "antiseptic" nature of stipulations].) Under the general rule, therefore, the prosecution was not required to accept defendant's stipulation that the fight occurred after a "disagreement" between Deadrich and defendant. However, an exception to the general rule is "the instance in which the probative value of the evidence is substantially outweighed by its prejudicial effect" pursuant to section 352. (People v. Thornton (2000) 85 Cal.App.4th 44, 49.) Accordingly, we turn to the section 352 issue.
"Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Here, the rape allegation testimony was relevant to explain what caused the confrontation between defendant and Deadrich. Indeed, the seriousness and gravity of the victim's accusation was integral to a coherent account of how events unfolded after that initial confrontation, and crucial to the jury's understanding of how the two men came to engage in such a brutal and prolonged fight after the victim entered the trailer at Nettles' urging. The rape allegation evidence was also relevant to the issue of which party was the aggressor: Defendant claimed the victim accused him of rape and then struck him in the face, whereas the victim claimed that the accusation of rape caused defendant to "square up" and begin fighting. For these reasons, the rape allegation evidence carried probative value.
Nor was the probative value of the rape allegation evidence substantially outweighed by the probability that its admission would necessitate undue consumption of time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. Neither side called additional witnesses to testify regarding the rape allegation or the manner of its occurrence. Moreover, during closing argument both attorneys stressed that defendant was not on trial for rape. Based on the record before us, evidence of the rape allegation was not reasonably likely to prejudice the jury against defendant on the ultimate, and discrete, issue of whether defendant struck Deadrich with his fist or with a knife. (Cf. People v. Karis (1988) 46 Cal.3d 612, 638 [noting "[t]he 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"]. ) In sum, we cannot say the trial court's decision to allow the rape allegation testimony was a manifest abuse of discretion under section 352. (See People v. Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.)
Defendant, however, further contends that even if the trial court properly allowed the rape allegation testimony under section 352, the trial court should have instructed the jury sua sponte not to regard the testimony as propensity evidence. We disagree.
In the first instance, the rape allegation testimony was not offered as propensity evidence nor did the prosecution argue it as such. In all events, although a trial court should give a limiting instruction if requested, "it has no sua sponte duty to give one." (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Defendant acknowledges he did not request a limiting instruction. Nonetheless, he argues a limiting instruction was required under People v. Collie (1981) 30 Cal.3d 43 (Collie),in which our Supreme Court, after stating the general rule that "the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct," added: "There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence." (Id. at p. 64.)
This is not the occasional extraordinary case contemplated by Collie. Here, the rape allegation evidence was disputed, was completely dissimilar to the charged offense of assault with a deadly weapon, and was admitted for the legitimate purpose of explaining the origin and intensity of the confrontation between Deadrich and defendant. (See Collie, supra, 30 Cal.3d at p. 64 [noting evidence of past offenses may not improperly affect the jury's deliberations if the facts are equivocal, the charged offense is dissimilar, or the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced].) Nor was the rape allegation evidence "a dominant part of the evidence against the accused" on the charge of assault with a deadly weapon, where the critical determination was whether defendant struck Deadrich with a knife or with his fist. (Ibid.)Thus, Collie's "hypothetical exception to the rule generally rejecting a sua sponte duty" to instruct the jury on the limited admissibility of evidence of past criminal conduct is inapplicable here. (People v. Farnam (2002) 28 Cal.4th 107, 164.)
Because there was no error of state law in the admission of the rape allegation evidence, we also reject defendant's further assertion that such evidence rendered his trial fundamentally unfair in violation of the Due Process Clause of Fourteenth Amendment. (See People v. Hart (1999) 20 Cal.4th 546, 617, fn. 19.) Finally, finding no cumulative error here, we reject defendant's contention the judgment must be reversed on this ground as well. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1354.)
DISPOSITION
The judgment is affirmed.
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Jenkins, J.
We concur: __________________
Pollak, Acting P. J.
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Siggins, J.