Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County. Nos. LA055011; LA061057 Martin Larry Herscovitz, Judge.
Lenore O. DeVita, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
This is a consolidated appeal from a criminal conviction of corporal injury to a child’s parent and from a probation revocation hearing for an underlying conviction of criminal threats. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal. After counsel filed a Wende brief, appellant filed a supplemental brief. We have reviewed the entire record and appellant’s supplemental brief, and find no arguable issue. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we provide a brief description of the facts and procedural history of the cases.
1. Criminal Threats (Super. Ct. L.A. County, 2007, No. LA055011)
A. Conviction
On June 20, 2007, Joseph Dvorak was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2)); criminal threats (§ 422); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); and misdemeanor battery (§ 243, subd. (e)(1).) Cristal, Dvorak’s cohabitant and the mother of his child, was the victim of each crime. On September 26, 2007, Dvorak waived his constitutional rights and pled no contest to making criminal threats. Dvorak admitted that he had been armed with a firearm during the commission of the offense in violation of section 12022, subdivision (a)(1). Dvorak was placed on probation for three years and was sentenced to one year in county jail. Dvorak’s conditions of probation included a requirement that he obey all court orders. The People’s motion to dismiss the remaining charges was granted.
Undesignated statutory citations are to the Penal Code.
B. Probation Revocation
Dvorak represented himself in a probation violation hearing held in January 2009. Cristal testified that Dvorak wrote her several love letters, and Dvorak admitted that he violated a restraining order. Dvorak stated: “I believe I probably am guilty of violation of that order....” Exhibit 1 contains numerous letters Dvorak wrote to Cristal. Although Dvorak addressed the letters to his daughter, the content of the letters clearly demonstrated they were intended for Cristal. The court found Dvorak was in violation of his condition of probation requiring him to obey all court orders. The court imposed a previously suspended three-year term, consisting of two years for making a criminal threat and one year for the section 12022, subdivision (a)(1) enhancement. Dvorak timely appealed from the judgment.
2. Corporal Injury to a Child’s Parent (Super. Ct. L.A. County, 2009, No. LA061057)
A. Information
On February 17, 2009, Dvorak was charged with one count of corporal injury to a child’s parent in violation of section 273.5, subdivision (a). It was further alleged that he committed great bodily injury on Cristal under circumstances involving domestic violence in violation of section 12022.7, subdivision (e). The People also alleged that Dvorak suffered a prior strike conviction. Dvorak represented himself at trial and characterized this case as a “he said she said” case.
B. Trial
Cristal testified that in 2007, she called the police because Dvorak pointed a gun at her and threatened to kill her. A tape of Cristal’s call to 911 was played to the jury. Cristal asked Dvorak if he was going to kill her, and Dvorak responded: “If I have to... right now... – do you understand me?” Cristal testified that following her 911 call, police arrived at the residence, and she jumped out of the bedroom window because she was afraid Dvorak would hold her hostage. Their daughter was scratched when Cristal jumped out the window.
Appellant objected to the admission of his prior conviction for criminal threats, arguing that it did not involve domestic violence. The court found the incident involved domestic violence, evidence of the prior incident was admissible under Evidence Code section 1109, and that its prejudicial nature did not outweigh its probative value. The court also concluded the conviction for making a criminal threat involved moral turpitude. (People v. Thornton (1992) 3 Cal.App.4th 419, 424 [making of criminal threats is a crime of moral turpitude].) The court gave a limiting instruction telling the jury it could consider the prior incident only for the limited purpose of determining appellant’s credibility. Appellant did not object to Cristal’s testimony or the playing of the 911 tape. He objected to the admission of pictures showing a scratch on his daughter’s head, as we discuss in more detail in part 3 of the Discussion.
About two months after the 2007 incident resulting in his conviction for criminal threats, Cristal returned to Dvorak and began living with him again. Then, on January 18, 2009, Dvorak and Cristal fought. According to Cristal, Dvorak punched her in the face while she held their two-year-old child. The child fell. Dvorak hit Cristal’s ribs several times and twisted her arm until Cristal felt it break. Dvorak then picked Cristal up and threw her to the ground. As she lay on the ground, he put his knees on her neck. Cristal escaped to a neighbor’s house, and the neighbor called 911. In the 911 tape played for the jury, Cristal stated that Dvorak punched her, put his knee on her neck and broke her arm. Cristal’s upper arm was broken and, according to her, was permanently damaged. Cristal denied instigating the fight, assaulting Dvorak, or punching him. She also denied that she broke her arm by slipping and falling on the ground. Cristal acknowledged that she had taken diet pills.
Dvorak testified that on January 18, 2009, he and Cristal fought. Dvorak claimed that Cristal started the fight because she incorrectly suspected him of cheating on her and because she was concerned about money. Dvorak further claimed that Cristal slipped and fell on the floor. Dvorak testified that he did not beat her, punch her, or throw her to the ground. Nancy Zuniga, Dvorak’s former girlfriend, and Roderick Carter, a social worker, testified that they did not see bruises on Cristal’s face shortly after the incident.
With respect to the 2007 incident, Dvorak testified that Cristal was drunk, and he refused to allow her to take the baby to her parents’ home. Dvorak testified that he did not point a gun at Cristal, did not beat her, and that she had lied about the abuse.
C. Jury Findings and Sentence
The jury found Dvorak guilty of corporal injury to a child’s parent and further found that he inflicted great bodily injury upon Cristal. Dvorak admitted the prior serious felony conviction. The court denied Dvorak’s new trial motion. The court sentenced Dvorak to a total of 14 years in state prison.
DISCUSSION
We have examined the entire record in case No. LA055011 including the Marsden hearing and the entire record in case No. LA061057. We also have considered Dvorak’s supplemental brief and conclude Dvorak’s attorney has fully complied with the responsibilities of counsel, and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly, supra, 40 Cal.4th at pp. 118-119; Wende, supra, 25 Cal.3d at p. 441.) As explained below, Dvorak’s arguments in his supplemental brief lack merit.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
1. Continuance
Dvorak argues that the court erred in denying his seventh request for a continuance.
A. Background
When he requested to represent himself, Dvorak indicated that he understood “that no continuance w[ould] be allowed without a showing of good cause, and that such requests made just before trial w[ould] most likely be denied.” On March 20, 2009, the court appointed a private investigator for Dvorak. On April 2, 2009, the court granted Dvorak’s request for a medical expert. The court then granted Dvorak’s requests for six continuances, the first on April 15, 2009, and the last on September 1, 2009.
On September 10, 2009, Dvorak informed the court that his investigator had not conducted an adequate investigation. The court indicated it intended to request the investigator appear in court and receive further instructions from Dvorak. Dvorak responded “[t]hat sounds good, Your Honor.” Dvorak also informed the court that he had not received an X-ray of Cristal’s arm. Dvorak agreed, however, that he had received the medical reports and could give his expert those reports to review.
On September 15, 2009, before trial commenced, Dvorak again requested a continuance. As previously arranged, Dvorak’s investigator was present in court, and the court asked the investigator to subpoena all witnesses for trial. The court suggested that when the potential witnesses arrive at court, Dvorak’s investigator could interview any witnesses who had not previously been interviewed. Dvorak responded, “All right.” Neither Dvorak nor the prosecutor was able to subpoena Dr. Julie Jacobs, a physician who treated Cristal in the emergency room. Cristal’s medical records showed that she suffered a spiral fracture to her left arm. Dr. Jacobs noted that the fracture was the result of domestic violence. Trial commenced September 15, 2009.
In his motion for a new trial, Dvorak claimed that his investigator did not conduct a proper investigation. He also claimed that he was unable to contact his medical expert, who had been appointed by the court. His attorney (appointed for the new trial motion) argued that a new trial should be granted because the medical expert was not present. The court found there was not “one shred of information” showing that any witness Dvorak desired to call would have provided evidence favorable to Dvorak.
On appeal, Dvorak claims that the court erred in denying his request for a continuance. He states that a continuance was necessary to secure the testimony of Dr. Jacobs, other treating physicians, an expert on the effect of diet pills, and a copy of the X-ray to provide to his expert.
B. Legal Analysis
“Continuances in criminal cases may be granted only for good cause. (§ 1050, subd. (e).) ‘A “trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” [Citation.] Such discretion “may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” [Citation.] “To effectuate the constitutional rights to counsel and to due process of law, an accused must... have a reasonable opportunity to prepare a defense and respond to the charges.” [Citation.]’ [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 296.) When a party seeks a continuance to secure a witness’s testimony, the party must show that the evidence was “material and not cumulative.” (People v. Henderson (2004) 115 Cal.App.4th 922, 934.)
The court did not abuse its discretion in denying Dvorak’s request for a continuance, made just before trial. Dvorak understood that a continuance made just before trial would most likely be denied. The court had granted Dvorak six continuances, allowing him ample opportunity to prepare for trial. The court made sure that Dvorak would have a further opportunity to secure his witnesses for trial by requiring Dvorak’s investigator to subpoena and interview any witnesses who had not previously been contacted. Dvorak consented to this procedure.
The “trial court would not have abused its discretion in finding that the remaining witnesses were not essential to preserving defendant’s ‘“reasonable opportunity to prepare a defense and respond to the charges.”’ [Citations.]” (People v. Riggs, supra, 44 Cal.4th at p. 296.) Testimony that Cristal did not have bruises would have been cumulative as both Zuniga and Carter testified that they did not observe bruises on Cristal shortly after the incident. Evidence as to the effect of diet pills on Cristal’s bones would not have assisted in determining whether she fell or Dvorak twisted her arm and threw her to the ground. Finally, Dvorak claims on appeal that he needed Cristal’s X-ray, but he had previously agreed that he could provide his expert the medical reports, which he had in his possession even without the X-ray. Our record provides no support for his implicit claim that the X-ray would have benefitted him.
2. Investigation
Dvorak argues that his investigator was ineffective. Dvorak faults his investigator for failing to complete the investigation but identifies no one his investigator failed to interview or subpoena. As mentioned above, neither side was able to serve Dr. Jacobs with a subpoena. Based on the appellate record, there is no support for Dvorak’s contention that his investigator failed to complete an investigation. To the contrary, the record shows that the court ordered the investigator to appear and to subpoena the witnesses requested by Dvorak.
When requesting to represent himself, appellant indicated that he understood a lawyer would have been able to investigate his case.
3. Pictures
Dvorak argues that pictures of his daughter taken after the 2007 incident and showing a scratch on her head should have been excluded under Evidence Code section 352 because they were more prejudicial than probative. Dvorak argues that he suffered prejudice from the admission of the pictures because they created the appearance that he had abused his daughter. We first provide additional background and then consider Dvorak’s legal argument.
A. Background
In the 2007 incident, Dvorak and Cristal’s child was scratched when Cristal fled through the window. Pictures taken at the time show a superficial, narrow scratch along the right side of Dvorak’s daughter’s head. Dvorak moved to exclude pictures of his daughter under Evidence Code section 352. The trial court concluded that the admission of the pictures was not prejudicial because the prosecutor did not contend Dvorak caused the injuries to his daughter. The court found that the admission of the pictures was probative because they supported Cristal’s statements that she escaped out the window. The pictures were admitted in evidence. In addition, Police Officer Thomas Musser testified without objection that when he responded to a 911 call in 2007 he noticed the child had a four- or five-inch laceration.
In his opening argument, Dvorak argued that with respect to the 2007 incident “I yelled at her, but I did not point a gun at her. And you will see that she lied about it, and there’s going to be evidence that she lied about it in a court of law.” In her opening argument, the prosecutor argued, “I don’t want you to hold him [Dvorak] accountable this time, to punish him for the 2007 incident. We’ve only charged one count in this case January 18th, 2009 for being violent towards her that day.”
B. Legal Analysis
Under Evidence Code section 352, a trial court has discretion to exclude evidence “if its probative value is substantially outweighed by undue prejudice.” (People v. Moore (2010) 187 Cal.App.4th 937, 943.) We review the court’s ruling for abuse of discretion and conclude the court acted within its discretion. (Ibid.)
Dvorak’s theory of the case was that Cristal lied about both the 2007 and 2009 incidents. He argued this was a “he said she said” case and placed Cristal’s credibility directly at issue. As the trial court found the pictures supported Cristal’s description of the 2007 incident, their admission did not prejudice Dvorak. No one testified and the prosecutor did not argue that Dvorak inflicted the scratches on his daughter. Therefore, Dvorak’s claim that the pictures created the appearance he abused his daughter is not supported by the record.
Finally, even if the admission of the pictures constituted error, Dvorak did not suffer prejudice under any standard. The pictures concerned only uncharged conduct. The prosecutor argued to the jury that it should not hold Dvorak accountable for the 2007 incident, and the jury was instructed that it could consider that evidence only for a limited purpose.
4. Jury Instructions
Dvorak argues “[t]he judge failed to instruct the jury on the late disclosure of discovery. The prosecutor turned over pictures, all tape, police report and transcripts of case no LA055011 the same day as jury selection.” The discovery issue was raised in the trial court prior to trial, and the People represented that the discovery had been provided. Dvorak acknowledged that he had a copy of the preliminary hearing transcript. The court provided Dvorak the remaining documents he requested.
In the trial court, Dvorak requested the court instruct the jury with CALCRIM No. 306 regarding the untimely disclosure of evidence. The prosecutor argued that if the court gave that instruction it should also instruct that Dvorak did not provide timely discovery. The court concluded that “the better side of discretion is to not give the instruction at all, because there’s no question that Mr. Dvorak did not turn over certain things....” The court also found that “since both sides were able to counter and effectively cross-examine... any evidence that was discovered late, I don’t see how it should be held against either side in this situation.” Section 1054.5 governs discovery in criminal cases. Section 1054.5, subdivision (b) provides: “the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.”
CALCRIM No. 306 instructs the jury on untimely disclosure of evidence and provides: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: ____.... [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] [However the fact that the defendant’s attorney failed to disclose evidence [within the legal time period] is not evidence that the defendant committed a crime].”
Section 1054.5 permits the trial court to inform the jury of the untimely disclosure of evidence, but does not require it. Dvorak does not show the court abused its discretion in refusing to give the instruction on the untimely disclosure of evidence. The court found that both sides failed to timely disclose evidence and neither side was hampered in its cross-examination. Even though he claims he did not receive all of the documents, Dvorak was aware of the prior incident as he suffered a conviction as a result of it. Stated otherwise, Dvorak could not have been surprised by the evidence he claims was untimely disclosed. Even if the court erred in refusing to give the instruction, the error was harmless under any standard. (Cf. People v. Riggs, supra, 44 Cal.4th at p. 311 [finding giving CALCRIM No. 306 harmless under state and federal standards].) There was no reasonable possibility the failure to give the instruction on discovery related to an uncharged offense affected the outcome of the trial.
5. Failure to Disclose Statements
Dvorak argues “[t]he prosecution never disclosed statements, made by Irma... (Cristal[’]s mother), about the physical appearance of Cristal... made to Detective [Matthew] Brayman.” There is no support in the record for Dvorak’s claim that Irma provided statements to Brayman regarding Cristal’s appearance. Nor is there support in the record for the claim that the prosecution failed to disclose Cristal’s mother’s statements to Brayman. Dvorak demonstrates no error.
DISPOSITION
The judgments are affirmed.
We concur: RUBIN, Acting P. J.GRIMES, J.