Opinion
C081880
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN LUKE BRISTOW, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15000295)
A jury found defendant Justin Luke Bristow guilty of corporal injury to a cohabitant and acquitted him of making criminal threats. The jury also found defendant did not inflict great bodily injury during the commission of the corporal injury offense. On appeal, defendant contends the trial court committed instructional and evidentiary errors and also erroneously denied his motion for a mistrial. Defendant further contends cumulative error resulted. Finding no merit in defendant's contentions, we affirm.
FACTUAL AND PROCEDURAL HISTORY
I
The Offense
On August 3, 2015, at 6:15 a.m., Terry Hafner awoke to a knock on the front door of his house. When Hafner opened the door, he saw his neighbor Shaye Blazer hysterically crying. Blazer told him she was attacked by defendant, her boyfriend, who strangled her, threw her on the ground, and kicked her in the sternum. Both sides of Blazer's throat were red, as was her hand. Hafner called the sheriff's department.
When Nevada County Sheriff Deputy Sina Ghaffarpour arrived, he interviewed Blazer. Blazer had a hard time focusing during the interview and could not chronologically relate the events of her attack. She told Deputy Ghaffarpour that she and defendant were having dinner the night before when defendant snapped and got violent with her. He smashed her television and the television fell on her leg. After he broke the television, Blazer followed defendant into the garage and begged him not to take her bike. Defendant then got on top of her and tried to strangle her. Blazer told defendant to leave and he took her bike and left.
That morning, defendant broke into Blazer's house by removing the air-conditioning unit in her bedroom window. When she asked defendant to leave, he kicked her several times in her sternum, threw her against the wall, hit her head, and grabbed her by the throat. Defendant then took her into the hallway, where he threw her head against the wall and bit her lip. After the assault, defendant fell asleep in the master bedroom and Blazer went to the neighbor's house for help. Blazer's chest felt like it was broken and it was hard for her to move and breathe. She also could not hear out of her right ear and thought her thumb was broken. Blazer later told medical personnel that defendant had stabbed her in her thigh with a screwdriver.
Deputy Ghaffarpour took photographs of Blazer's neck and cheek, which were both red. In Deputy Ghaffarpour's opinion, the redness to Blazer's neck was consistent with markings produced by strangulation. Blazer's chest was bruised, as was her inner left thigh, which also had a large puncture wound. Blazer also had scrapes and bruises on her left wrist.
Following his interview with Blazer, Deputy Ghaffarpour went inside the house and found defendant asleep in bed. He woke defendant, who was cooperative and did not appear to be under the influence of drugs or alcohol. Defendant did not have any visible injuries.
At trial, Blazer's testimony about the assault was inconsistent with what she previously told Deputy Ghaffarpour had happened. Blazer testified that she and defendant had a late dinner on August 2, 2015, and they both drank wine. After dinner, defendant appeared to be on drugs because he was acting more loopy and excitable than usual. Blazer had seen defendant when he was using drugs in the past and confronted him about whether he was currently using drugs. Defendant denied that he was. The two then argued and defendant became agitated. Blazer told defendant that he needed to leave her house because he was not allowed to be there if he was using drugs. Defendant took Blazer's bike and left. She did not object to defendant taking her bike.
After defendant left, Blazer went back into the house and locked all of the doors and windows. She then took a half milligram of Xanax and went to bed. Blazer later awoke to defendant ripping out the air-conditioning unit in her bedroom window and crawling through the window. Blazer got out of bed and told defendant multiple times to leave and that she was going to call the police if he did not. Defendant seemed "extremely agitated and very aggressive." He scooted across the bed, yelled at her to "leave [him] the fuck alone," and then kicked her in the chest. The kick knocked Blazer into the bedroom door. Blazer told defendant again that she was going to call the police and that he needed to leave. Defendant kicked Blazer in the sternum again but more forcefully. The second kick knocked Blazer onto the floor in the hallway outside of the bedroom.
Defendant came after Blazer and put both of his hands around her neck, pushing her onto the ground as she attempted to stand. She told him he was hurting her and she could not breathe. Defendant lifted Blazer off the ground by her neck and pushed her against the wall. He then let go of her and she fell on her back in the hallway. Defendant got on top of Blazer, grabbed her by her wrists and slammed her head against the floor. He then stood up and kicked her in her right rib cage. Defendant went into the bedroom. Blazer tried to stand by using the bedroom doorjamb for leverage. As she did so, defendant slammed the bedroom door shut on her thumb. Blazer screamed for defendant to open the door because her thumb was stuck, but instead of opening it, defendant pushed the door closed. Defendant then opened the door and slapped Blazer across her face with the back of his hand. Blazer's ears started ringing and she could not see. She wobbled and fell back against the wall. Blazer then grabbed her purse and bike and went to the neighbors' house for help.
Blazer did not recall what she said to Deputy Ghaffarpour or medical personnel after the assault. She also did not recall how the injury to her thigh occurred. She testified that her thumb felt as though it was broken and the nail turned black and blue. It later fell off and she could not use her thumb for a few months. She also thought her ribs were broken because she could not take a full breath. She still had rib pain at the time of her testimony.
Blazer was diagnosed by her treating physician with a fracture to her sternum and a concussion. Although the radiologist described Blazer's sternum fracture as "suspicious," meaning not conclusively present, her x-ray showed an abnormal sternum and her complaints of tenderness confirmed that her sternum was actually fractured. A fractured sternum results from a "significant amount of force" and is most commonly seen as a result of a car accident. It is also common for concussion patients to have trouble remembering or have difficulty focusing.
Defendant testified that Blazer's testimony was untrue. He claimed Blazer was home drinking wine when he got home from work at 4:30 p.m. on August 2, 2015. Around 7:00 p.m., the two went to Safeway and bought wine and food for dinner. Defendant started drinking wine when the two returned from the store. He did not use any drugs.
At 8:00 or 9:00 p.m., Blazer became "excitable" and wanted to have sex with defendant. The two moved to the hammock in the backyard, but defendant was not able to orgasm, which made Blazer angry. Defendant was embarrassed, so he went inside the house. Blazer followed him because she wanted to discuss the reasons for his lack of orgasm; she also became insecure and jealous. Defendant stopped drinking because he noticed Blazer's mood had changed. Blazer continued to drink the wine. Defendant started watching a movie to separate himself from Blazer. After 30 minutes of watching the movie, Blazer called to him from the kitchen. When defendant went to the kitchen, Blazer was sitting on the floor and told defendant to "look what [she] did." When defendant looked, he saw that both of her wrists were bleeding. Defendant had seen Blazer act like this before, so he cleaned her wrists with a paper towel and then went back to watching his movie.
Defendant called his father because he did not know what to do. The conversation lasted five minutes and then defendant continued to watch his movie. After more time had passed, Blazer called for defendant again but from the back door of the house. When defendant got to the back door, he saw Blazer on the ground with her head near the door strip. Blazer said, "look what I did" and pointed to her left leg. When defendant pulled up her pant leg, he saw that she had a large wound to the inside of her left thigh. Defendant carried Blazer to the bedroom, put her on the bed, and cleaned her wound. He then went to the garage and saw a fillet knife in the doorway with blood on it. He picked the knife up with a Ziploc bag so his fingerprints would not be on it, and then placed it in the barbecue. The prosecutor asked him if the knife was still in the barbecue, to which defendant said that was highly doubtful. The following exchange then occurred:
"[DEFENDANT:] I would love it if you guys would go check and see if that's there. I asked and requested that.
"[PROSECUTOR:] When did you do that?
"[DEFENDANT:] A long time ago.
"[PROSECUTOR:] Okay. Do you remember the approximate date?
"[DEFENDANT:] No.
"[PROSECUTOR:] Who'd you say it to?
"[DEFENDANT:] It's client/attorney privilege.
"[PROSECUTOR:] Don't want to get into attorney/client privilege or anything. When did you -- at least maybe indirectly attempt to make a request for that?"
The court overruled defense counsel's objection that the prosecutor was eliciting evidence protected by the attorney-client privilege because the prosecutor's question did not ask for the substance of the communication, only when the conversation occurred. The court later denied a mistrial on these same grounds. Defendant said he requested someone look for the knife two months after the incident occurred.
After placing the knife in the barbecue, defendant went into the house and saw Blazer in bed. He then went to the living room to call a friend; however, he was unable to because Blazer slapped him across the face and knocked the phone out of his hand. The impact shocked defendant. He yelled at Blazer, picked up her television and smashed it against the wall, before throwing it on the ground. He did not throw the television at Blazer. Defendant continued to yell at Blazer and she eventually went to the backyard. Defendant was so upset that he locked Blazer out of the house. She tried to get back into the house through the back door but could not, so she removed the air-conditioning unit from the bedroom window. After removing the unit, Blazer "launched herself into the window [and] onto the windowsill and then pulled herself into the bedroom." When she launched herself, she landed on her chest on top of the window sill. Once Blazer was in the bedroom, she was exhausted and in and out of consciousness. She eventually fell asleep on the bed. Defendant still could not find his phone, so he decided to go for a bike ride. When he returned home at 1:30 a.m., Blazer was still asleep in the bed and he joined her.
The court instructed the jury on corporal injury to a cohabitant. Both the prosecution and defense counsel stated they did not want an instruction on the lesser included offenses to corporal injury. The court stated it would not instruct on the lesser offenses because if the victim were believed, defendant would only be guilty of the greater offense; whereas if she were not believed, then defendant would not be guilty of anything.
II
Blazer's Prior Accusations Of Domestic Violence
Before trial, defendant moved to introduce evidence of allegations of domestic violence Blazer had previously made against three men -- Robert Francis, George Kent, and Nicholas Whittlesey. Defendant argued that Blazer lied when reporting these previous acts of domestic violence and her statements and reputation for dishonesty should be admissible to show her lack of credibility in her reporting of this incident.
As it pertained to Whittlesey, defendant offered the testimony of Whittlesey alone. Whittlesey would testify about his opinion of Blazer's reputation for untruthfulness. Blazer had accused him of domestic violence while they were going through a divorce. Defendant admitted that Whittlesey could recall an instance when Blazer blocked his exit from a room, and he grabbed the door handle and pushed past her. For a few years after this incident, Whittlesey heard from mutual friends that Blazer told them he was a "wife beater." The court excluded this evidence because its prejudicial effect outweighed its probative value. The testimony would necessitate an undue consumption of time and confuse the jury because it would require a minitrial on the issue of whether Blazer or Whittlesey was the more truthful party for the testimony to have relevance on Blazer's credibility in the current trial.
In regard to the Francis matter, defendant sought to introduce the testimony of Francis, Nevada County Sheriff Sergeant Robert Bringolf, District Attorney Investigator Tom Swisher, Deputy District Attorney James Phillips, and Francis's defense counsel, and statements Blazer made in an application for a restraining order against Francis. Francis was expected to testify about Blazer's character for untruthfulness and dishonesty. Sergeant Bringolf was the responding officer to Blazer's report of domestic violence against Francis. He was expected to testify to Blazer's initial statements wherein she said Francis grabbed a clipboard from her and attacked her with it. Investigator Swisher was expected to testify to Blazer's subsequent statements where she said Francis tried to take the clipboard from her, and during the struggle was hit with it several times, but Francis never had full possession of the clipboard. During an Evidence Code section 402 hearing, Deputy District Attorney Phillips testified that he had no independent recollection of conversations he had with Blazer regarding a case in which she was the victim of domestic violence. He acknowledged that he most likely sent an e-mail to Francis's defense attorney stating that the victim was not "sideways," which he normally used to mean that the victim was cooperative with the prosecution and had not fundamentally changed her story. Defendant intended to call Francis's defense attorney to testify about the e-mail Phillips sent to her about Blazer not being "sideways." Finally, defendant wanted to offer statements Blazer made in her application for a restraining order to show that they were inconsistent with what she had reported to the responding officer and Investigator Swisher. In the application, Blazer alleged that Francis shook her and prevented her from leaving the bathroom where she was caring for a cut he inflicted on her thigh. He threw her on the bed and held her down where he shook her and twisted her right breast. He also threatened to hurt her so that she would know what that felt like.
All further section references are to the Evidence Code unless otherwise indicated.
The court ruled that it would admit Blazer's statements to Sergeant Bringolf, Investigator Swisher, and the statements she made in her application for a restraining order. The court excluded the testimony of Francis, Phillips, and Francis's defense attorney. The court reasoned that Francis's testimony did not survive a section 352 analysis because it would necessitate a minitrial where the jury would have to decide who was telling the truth -- Francis or Blazer. The undue consumption of time and risk that the evidence would confuse the jury outweighed the limited probative value the evidence offered. This was especially true because the crux of defendant's argument was that Blazer made inconsistent statements in connection with her reports of domestic violence and this was sufficiently shown through the admission of Blazer's statements to Sergeant Bringolf and Swisher, and as detailed in her application for a restraining order. The court excluded the testimony of Phillips because it also did not survive a section 352 challenge. Phillips's testimony about his conversations with Blazer was speculative and would be time consuming, confusing, and distracting. Because the court excluded Phillips's testimony, there was no relevance to Francis's defense counsel's testimony about the e-mail of which Phillips had no present knowledge.
In regard to Blazer's allegation of domestic violence against Kent, defendant sought to introduce the testimony of Kent and Nevada County Sheriff Deputy Brandon Lampe, and statements Blazer made in her application for a restraining order. Kent was expected to testify about Blazer's character for untruthfulness and dishonesty. Defendant also wanted Kent to testify about what actually occurred during the event Blazer reported as domestic violence and also about an incident in 2011 where he called the police because Blazer slapped him. Defendant offered Deputy Lampe's testimony to show multiple inconsistent statements Blazer made during her initial report. First Blazer told Deputy Lampe she pushed Kent before he "pushed [her] around inside the residence" for an hour. When asked follow up questions, Blazer said she brushed up against Kent when trying to get a corkscrew. She then said she grabbed the corkscrew from Kent without pushing him. Finally, Blazer said she took the corkscrew after Kent put it on the counter. Blazer also told Deputy Lampe she had a large bump on the back of her head, but when he felt the area, he did not find a bump or sign of injury. Blazer alleged in her application for a restraining order that Kent swung a wine bottle at her, which she never reported to Deputy Lampe.
The court excluded Kent's testimony because the evidence's prejudicial effect was not outweighed by its probative value. Kent's testimony would consume time and confuse the jury because it would necessitate a minitrial wherein the jury would have to determine whether he or Blazer were telling the truth before it could use that finding to influence a credibility determination. Testimony about Blazer's initial statements and her statements in her application for a restraining order sufficiently showed that she made inconsistent statements regarding her allegation of domestic violence against Kent. Thus, the trial court admitted the testimony of Deputy Lampe and the statements Blazer made in her application for a restraining order.
DISCUSSION
I
The Trial Court Did Not Have A Sua Sponte Duty To
Instruct On Lesser Included Offenses
Defendant contends the trial court had a sua sponte duty to instruct the jury with the lesser included offenses of simple assault, battery, and battery on a cohabitant. Defendant reasons that because the jury found Blazer's injuries did not amount to great bodily injury, it was likely the jury would have found the injuries also did not amount to a traumatic condition or that defendant did not personally inflict Blazer's injuries and thus would have found him guilty of a lesser included offense had it been instructed. We disagree.
A trial court is required to instruct only on lesser included offenses that are supported by substantial evidence. (People v. Licas (2007) 41 Cal.4th 362, 366.) Substantial evidence in this context "is not merely 'any evidence . . . no matter how weak' [citation], but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Thus, there must be " 'evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser." (People v. Memro (1995) 11 Cal.4th 786, 871, italics omitted.) "Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) We apply a de novo standard of review to the obligation to instruct on a lesser included offense. (Licas, at p. 366.) In doing so, we consider the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) However, it is defendant's burden to show error by demonstrating substantial evidence of the lesser offense. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1458.)
Corporal injury on a cohabitant is committed by "[a]ny person who willfully inflicts corporal injury resulting in a traumatic condition." (Pen. Code, § 273.5, subds. (a) & (b)(2).) Defendant argues the trial court should have instructed on three lesser included offenses of corporal injury to a cohabitant -- simple assault, battery, and battery on a cohabitant.
Simple assault is a lesser included offense of corporal injury and requires evidence that "[t]he defendant did an act that by its nature would directly and probably result in the application of force to a person." (CALCRIM No. 915.) Defendant argues that his "trial presented the classic he-said versus she-said contest." He acknowledges that Blazer experienced an injury, but argues that a properly instructed jury could have found the injuries were not attributed to him. The problem with defendant's argument is that had the jury believed his version of events -- that Blazer inflicted her own injuries in her drunken state -- then it could not have convicted him of simple assault. Defendant testified he did not attempt to or actually touch Blazer. He did testify that he smashed the television against the wall and threw it on the ground after yelling at Blazer, but claimed he did not physically attack her. Thus, if the jury had believed defendant's version of events, it could not have found him guilty of a simple assault because it would have believed defendant did not do an act that by its nature would directly and probably result in the application of force to Blazer. Therefore, the jury could either find him guilty of corporal injury or guilty of nothing.
Similarly, the trial court did not err by failing to instruct the jury on simple battery or battery on a cohabitant, both of which are lesser included offenses of corporal injury. (People v. Jackson (2000) 77 Cal.App.4th 574, 580; People v. Thurston (1999) 71 Cal.App.4th 1050, 1054-1055.) Simple battery is "willfully [and unlawfully] touch[ing] . . . [a person] in a harmful or offensive manner." (CALCRIM No. 960.) Defendant relies on Jackson for the proposition that he did not directly inflict injury upon Blazer and thus could have been convicted of the lesser included offenses of battery. (Jackson, at p. 580.) In Jackson, the defendant pushed the victim up against a car, but her injuries resulted from her act of turning around and tripping. (Id. at p. 576.) The Jackson court held that a defendant is not guilty of corporal injury on a cohabitant when "the victim's injury d[id] not result from direct physical contact by the defendant." (Id. at p. 575.) The court explained that if the victim had fallen "as a direct result of the blows inflicted by [the defendant], we would conclude that [the defendant] inflicted the corporal injury she suffered in the fall;" however, that was not the case. (Id. at p. 580.)
Neither defendant nor Blazer, however, testified that her injuries were inflicted through defendant's indirect act. Defendant testified that he did not cause Blazer's injuries -- whether directly or indirectly. In other words, in terms of battery, there was no unwanted touching by defendant. He claimed that Blazer inflicted her own injuries by cutting her wrists, stabbing her thigh, and "launching" herself through the bedroom window. Blazer, on the other hand, claimed defendant kicked her in the chest multiple times, strangled her, slapped her, hit her head against the floor, and smashed her thumb in a doorjamb. Blazer did make statements to Deputy Ghaffarpour that the puncture wound to her thigh was caused by the television falling on her; however, these statements also directly attributed her injury to defendant's act of smashing the television. Thus, the jury was presented with the scenario that Blazer's injuries were either caused by defendant's direct acts or not caused by defendant's acts at all. Because there was no evidence that Blazer sustained her injuries through defendant's indirect acts, defendant's reliance on Jackson is misplaced.
Defendant also argues that the jury could have determined Blazer's injuries "fell short of constituting a 'traumatic' injury," thus finding him guilty of the lesser battery offenses. Corporal injury, as opposed to the battery offenses, includes the additional element of "injury resulting in a traumatic condition." (Pen. Code, § 273.5, subd. (a).) A "traumatic condition" can be "a wound, or external or internal injury . . . , whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (d); People v. Abrego (1993) 21 Cal.App.4th 133, 137 [minor injuries such as bruises suffice to constitute a "traumatic condition"].) Blazer's injuries included a fractured sternum, a concussion, bruises to her neck consistent with strangulation, a bruise to her cheek, scratches to her wrists, and a puncture wound to her inner thigh. While the jury found these wounds did not constitute great bodily injury, there is no question that they were sufficient to constitute a "traumatic condition."
Accordingly, there was no error in the trial court not instructing on the lesser included offenses of simple assault, battery, and battery on a cohabitant.
II
The Trial Court Did Not Abuse Its Discretion In Limiting The
Evidence Of Blazer's Prior Accusations Of Domestic Violence
Defendant contends the court erroneously excluded "evidence of Blazer's reputation for dishonesty, opinion evidence of her dishonesty, and evidence tending to show the falsity of . . . Blazer's previous allegations against [Whittlesey, Francis, and Kent]." Defendant does not argue which witnesses he thinks the court should have allowed to testify, but it appears he would be satisfied with all of the excluded witnesses' testimony having been admitted. He spends much time arguing this evidence was relevant character evidence on the issue of Blazer's credibility. As described, however, the trial court acknowledged Blazer's credibility was at issue, and that evidence of her prior inconsistent statements was relevant on that topic. Because of this, the court did not exclude the testimony of Whittlesey, Francis, and Kent on the basis that it was inadmissible character evidence, but excluded it on the basis that its prejudicial effect outweighed its probative value. It ruled on this same basis when excluding the testimony of Deputy District Attorney Phillips and Francis's defense attorney. We conclude the trial court did not abuse its discretion in limiting the evidence of Blazer's prior allegations of domestic violence to the inconsistent statements she made in the course of reporting her allegations.
The admission of impeachment evidence is subject to exclusion under section 352. (People v. Lucas (2014) 60 Cal.4th 153, 240, disapproved on another point in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) Under section 352, a trial court "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."
"[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. . . . [¶] When exercising its discretion under . . . section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor -- or any other conduct not amounting to a felony -- is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297.)
We review a trial court's rulings regarding the admission or exclusion of evidence under section 352 for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) " '[T]he term judicial discretion "implies absence of arbitrary determination, capricious disposition or whimsical thinking." ' [Citation.] '[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.' " (People v. Mullens (2004) 119 Cal.App.4th 648, 658.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark (2011) 52 Cal.4th 856, 932.)
Here, the trial court spent much time and devoted an evidentiary hearing to listening to and weighing defendant's proffered evidence to impeach Blazer's credibility. In the end, the court limited the evidence to Blazer's inconsistent statements contained in her initial police reports for the Francis and Kent matters, her report to Investigator Swisher for the Francis matter, and her applications for a restraining order in the Francis and Kent matters. It excluded the testimony of the men Blazer had previously accused of domestic violence -- Whittlesey, Francis, and Kent -- and also excluded the testimony of the district attorney and defense attorney assigned to the Francis matter. It excluded this testimony for a variety of reasons justified by section 352, including an undue consumption of time, juror confusion, and speculation.
As for Whittlesey, the court found, and defense counsel agreed, that the relevance of his testimony was "tenuous." Whittlesey was expected to testify that Blazer accused him of domestic violence during their divorce and that mutual friends told him Blazer called him a "wife beater" in the years following their divorce. Whittlesey disagreed with Blazer's characterization; however, he could recall a circumstance when he pushed her. The trial court found this testimony would be confusing to the jury and an undue consumption of time, and did not abuse its discretion in doing so. This evidence would necessitate Whittlesey's and Blazer's testimony on the subjects of the confrontation between them, their divorce proceedings, and Blazer's statements following their divorce. It also would have necessitated the testimony of the mutual friend Blazer supposedly told that Whittlesey was a "wife beater," to avoid hearsay concerns. This consumption of time was not justified by the probative weight this evidence offered. Whittlesey's testimony did not necessarily show Blazer was not credible. In fact, this evidence would show Whittlesey pushed Blazer when they were married -- facts that might or might not lead a person to characterize him as a "wife beater." As the trial court noted, the court would have to conduct a minitrial so the jury could determine whether Whittlesey or Blazer was the more credible witness and also to determine the proper purpose and relevance of the evidence being offered. For these same reasons, the jury would likely be confused by this evidence and its relation to the trial before it. Because the limited probative value of Whittlesey's testimony was outweighed by its confusion and consumption of time, the court did not abuse its discretion in excluding the evidence under section 352.
The court also did not abuse its discretion in limiting the evidence related to Blazer's allegations of domestic violence against Francis and Kent to her inconsistent statements on the subjects. In regard to both instances, defendant sought to show that Blazer had a history of making false statements and accusations of domestic violence against previous partners. In fact, Blazer was documented making inconsistent statements in various reports and in applications for a restraining order. Defendant argues these inconsistent statements alone were not enough to impeach her credibility because "[d]iscrediting evidence that a witness made inconsistent statements about an event is qualitatively different from evidence that she made false accusations of similar wrongdoing against multiple former boyfriends and/or spouses." Blazer's inconsistent statements, however, tended to show that she made "false accusations of similar wrongdoing against multiple former boyfriends and/or spouses." All of Blazer's inconsistent statements pertained to allegations of domestic violence against her former partners showing that she was dishonest in regard to her allegations against the men in question. Francis's and Kent's opinion in regard to Blazer's reputation for dishonesty added little value to the evidence the court already admitted.
In light of the limited probative value the evidence offered, the trial court did not abuse its discretion in deciding it was unduly prejudicial given the potential confusion and consumption of time the evidence posed. As the trial court found, Francis's and Kent's testimony would necessitate the jury engage in minitrials wherein it would have to assess the credibility of the men versus Blazer. Blazer's inconsistent statements were not so inconsistent that they showed her allegations were patently false, but did show she had a history of making inconsistent statements, which was the crux of defendant's argument. The jury would have to weigh Francis's and Kent's testimony in the same way it would have had to weigh Whittlesey's. Because the court admitted evidence sufficient to show Blazer had a history of making inconsistent statements in connection with her accusations of domestic violence, it did not abuse its discretion in limiting that evidence to that which would not confuse the jury and consume an undue amount of time.
Additionally, Phillips's and Francis's defense counsel's testimony was properly excluded because it presented the same prejudicial potential but without the limited probative value. As the trial court noted, Phillips's testimony was speculative because he could not presently recall any of Blazer's statements from his personal knowledge. In fact, Phillips's testimony was that he recalled Blazer had consistently reported her allegations of domestic violence against Francis. Given the additional speculation surrounding Phillips's proposed testimony, the court did not abuse its discretion in excluding his testimony or Francis's defense counsel's testimony about Phillips's e-mail pursuant to section 352.
Defendant relies on Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, to argue that the trial court's ruling deprived him of evidence to rebut Blazer's testimony. In Andrews, the plaintiff sued a city and six police officers for violation of his civil rights, among other causes of action. The city filed a motion in limine to preclude evidence of citizen complaints regarding the violent and abusive behavior of one of the officers. The motion was granted on the grounds that each episode of the officer's misconduct would prompt a minitrial. (Andrews, at pp. 941-947.) The appellate court reversed. It stated that though the trial court was worried about retrying every misconduct episode, it never asked plaintiff's counsel how many incidents he intended to offer, or the nature of the proof. The court noted that, "if the [trial] court intended to base its exclusionary ruling upon consumption of time on collateral matters, it did not exercise its discretion in an informed manner, as section 352 requires." (Andrews, at pp. 947, 948.)
That is not the case here. As noted, the trial court spent a significant amount of time hearing and weighing defendant's proposed testimony. At trial, the court allowed defendant to present Blazer's inconsistent statements, which tended to rebut Blazer's testimony and impeach her credibility. It excluded evidence that presented limited probative value and would necessitate an undue consumption of time or would confuse the jury. Thus, the trial court exercised "its discretion in an informed manner, as section 352 requires" unlike the trial court in Andrews. Accordingly, the trial court did not abuse it discretion in limiting the evidence to impeach Blazer's credibility to her inconsistent statements regarding previous allegations of domestic violence she had made against former partners.
III
The Trial Court Properly Denied Defendant's Motion For A Mistrial
During cross-examination, defendant testified that he requested for "you guys" to look for the knife he hid in the barbecue. The prosecutor then asked defendant who he had asked. Defendant responded by invoking attorney-client privilege. The prosecutor then asked when defendant made the request. The trial court overruled defense counsel's objection based on attorney-client privilege and defendant answered that he asked for someone to locate the knife two months after the incident occurred. Defendant now challenges this ruling by arguing the court erred by denying his motion for a mistrial based on the erroneous admission of attorney-client communications. Defendant's claim lacks merit because the prosecutor's question did not elicit any privileged communications from defendant.
"A motion for mistrial is directed to the sound discretion of the trial court. We have explained that '[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction.' " (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) "[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.)
"[S]ection 954 provides: 'Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. . . .' " (Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 843, italics added.) Section 952 defines a confidential attorney-client communication as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."
An analysis of the attorney-client privilege in a particular case must begin with an identification of the attorney, the client, and the communication sought to be protected. (Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094, 1104.) It is this last element where defendant's argument is lacking. He cannot point to a specific communication between him and his attorney the prosecution sought to elicit by his question. Defendant volunteered during cross-examination that he requested the knife Blazer used to cut her thigh be recovered and implied that he requested it from the prosecution. When asked to whom and when he made this request, defendant unexpectedly asserted the attorney-client privilege. The prosecutor, however, did not ask about a communication between defendant and his attorney. The trial court did not err when overruling defense counsel's objection to the prosecutor's question and in later denying his motion for a mistrial.
IV
The Trial Court Did Not Abuse Its Discretion In
Admitting Evidence Of Defendant's Drug Use
Defendant contends the trial court abused its discretion by admitting Blazer's testimony that she had seen defendant under the influence of drugs in the past and that she thought he used drugs the night of the incident. The People counter the evidence was admissible because it was relevant to explain Blazer's version of events and it was not unduly prejudicial. We agree with the People.
All relevant evidence is admissible unless otherwise provided. (§ 351.) The California Supreme Court has held, however, that "evidence of an accused's narcotics addiction is inadmissible where it 'tends only remotely or to an insignificant degree to prove a material fact in the case. . . .' " (People v. Cardenas (1982) 31 Cal.3d 897, 906.) On appeal, the reviewing court determines whether the trial court abused its discretion in admitting the evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 607.)
Felix illustrates what a prosecutor must demonstrate in order to introduce evidence of a defendant's drug use. (People v. Felix (1994) 23 Cal.App.4th 1385.) In Felix, the defendant was convicted of burglarizing a family member's home. The defendant introduced testimony by his sister, who indicated that he had implied consent to enter her house at any time and consent to take any items he wished. (Id. at pp. 1390-1392.) To rebut this claim, the prosecution introduced the sister's testimony that she was in fact distressed about her brother's condition due to his drug use. (Id. at p. 1392.)
The Felix court distinguished the facts of Felix from the facts of People v. Bartlett (1967) 256 Cal.App.2d 787 and People v. Davis (1965) 233 Cal.App.2d 156. The Felix court held that, unlike in Bartlett and Davis, the prosecution had established a direct connection between the burglary of the sister's house and the defendant's drug use. To establish the direct connection, the prosecution introduced testimony of the investigating officer who claimed the defendant admitted to burglarizing the home in order to buy drugs with the proceeds. (People v. Felix, supra, 23 Cal.App.4th at pp. 1393-1394.) In both Bartlett and Davis, the testimony linking the drug use to the crime was the mere observations of the arresting officers. (Bartlett, at p. 790; Davis, at pp. 159-160.) In both cases, the defendants appeared to be under the influence at the time of arrest, but in each case the time of arrest was several days after the commission of the crime. (Bartlett, at pp. 789-790; Davis, at pp. 157-160.) Thus, the officer's testimony in Felix was distinguishable from the facts of Bartlett and Davis since the connection was not made merely "by the opinion of an officer based on observations on an unrelated occasion." (Felix, at p. 1394.)
Here, Blazer testified that she had seen defendant when he was using drugs in the past and, given her experience, thought defendant was high on August 2, 2015, because he was more loopy and excitable than usual. She confronted him about whether he was currently using drugs, which led to an argument between the two. Blazer asked defendant to leave her home and he did. The next morning he returned to the house and seemed "extremely agitated and very aggressive" and beat her up. Unlike the case in Bartlett and Davis, this testimony directly linked defendant's drug use to his commission of the crime because it provided a possible explanation for his violent behavior. Further, unlike Bartlett and Davis, the testimony establishing defendant's drug use did not involve "the opinion of an officer based on observations on an unrelated occasion," but the testimony of a person with personal knowledge of defendant's behavior at the time of the offense. (See People v. Felix, supra, 23 Cal.App.4th at p. 1394.)
Nor was evidence of defendant's drug use more prejudicial than probative. In this context, prejudicial effect is not synonymous with damaging. (People v. Morton (2008) 159 Cal.App.4th 239, 249.) Instead, prejudicial evidence means evidence which, by its very nature, will evoke an emotional bias against the defendant and has little effect on the issues. (Ibid.) The prosecution's line of questioning did not insinuate that defendant was a drug abuser who had a propensity to assault his girlfriend. Rather, the line of questioning related solely to motive and explaining how and why defendant got angry in the hours before injuring Blazer. The prosecutor's questions were few and only related to laying a foundation to show Blazer's personal knowledge of defendant's behavior while on drugs and the fact that she thought defendant was using drugs on the night in question. Given the probative value of defendant's drug use and the prosecution's limited line of questioning, it was not an abuse of discretion for the trial court to admit evidence of defendant's drug use.
V
There Was No Cumulative Error
Defendant seeks reversal based on cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we have found no error occurred. Accordingly, there was no cumulative error.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.