Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD201350, Charles G. Rogers, Judge.
O'ROURKE, J.
A jury convicted Lisa Maree Gaut of (1) assault with a deadly weapon (Penal Code, § 245, subd. (a)(1)); (2) driving under the influence of alcohol/drugs (Veh. Code, § 23152, subd. (a)); and (3) driving with a blood alcohol level of at least.08 percent. (Veh. Code, § 23152, subd. (b)) As to count 1, the jury found true an enhancement that she personally used a dangerous weapon (a car) (§ 1192.7, subd. (c)(23)). Gaut was acquitted of a charge of assaulting a police officer. The court sentenced her to 5 years probation, subject to 180 days local custody.
Further statutory references are to the Penal Code unless otherwise stated.
The court offered to suspend custody if Gaut completed an approved work furlough program.
Gaut contends insufficient evidence supports her assault conviction. She further contends the court erroneously: (1) admitted into evidence recordings of her jailhouse conversations; (2) declined to instruct regarding duress and self-defense; (3) instructed regarding both flight and her failure to explain or deny adverse evidence and (4) denied her motion for a continuance. We conclude sufficient evidence supported the assault conviction and the trial court did not commit reversible error. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
THE PEOPLE'S EVIDENCE:
Aaron Mansker, a City of Coronado Police Officer, testified as follows: On September 3, 2006, after he finished working at approximately 2:51 a.m., he changed into plain clothes. He was driving home in his personal off-duty vehicle northbound on State Route 163 and encountered a black Oldsmobile, with tinted windows, travelling approximately 30 miles per hour in a 55 mile-per-hour zone. The Oldsmobile was swerving in and out of lanes and onto the right-hand shoulder, almost striking a center divide. Mansker used his work-issued, hand-held radio to contact the California Highway Patrol and reported his observations to a dispatcher, who said their officers were not available in the area. Mansker updated the dispatcher that the Oldsmobile was travelling up to 90 miles per hour. Mansker flashed his high beam lights a few times. He followed the Oldsmobile off the freeway, and saw it moving in the same erratic manner.
A recording of Mansker's conversation with the dispatchers was played during Mansker's testimony.
The dispatcher told him to contact another dispatcher from the San Diego Sheriff Department, because the Oldsmobile had left the California Highway Patrol's jurisdiction. Mansker did so and used his global positioning system navigation device to continuously update the new dispatcher regarding his location. Mansker told the dispatcher, "I've identified myself as a police officer. Uh, [the driver] became very nervous. And now he keeps stopping in the middle of the lanes." Mansker added that the Oldsmobile "stopped in about the [1100] block of Pomerado [Road]. The driver approached me. I gave him numerous commands, he wouldn't listen. Now he's getting back in his vehicle."
Mansker testified that when the Oldsmobile stopped at a traffic light on Pomerado Road, he drove next to its driver's window, which was rolled down. Mansker yelled to the driver, later identified as Steve Foley: "Police officer, I need you to pull to the curb." Mansker stated, "The driver looked like he was — he got nervous, started looking around in his vehicle like maybe there shouldn't be something in the vehicle." The Oldsmobile turned and afterwards, "the driver stopped in the No. 2 lane and then proceeded, stopping in both No. 1 and 2, and proceeded again stopping in the No. 1 lane." The Oldsmobile drove off.
Mansker testified, "After we made a turn again, the vehicle stopped in the No. 2 lane — and No. 2, that would be, going out from the curb, No. 1 lane is fast lane, No. 2 lane is slow lane. I stopped in the No. 2 lane. I stopped behind him and then drove forward, stopping on the center line dividing No. 1 and 2 lane [sic], and then proceeded forward, again stopping in the No. 1 lane." After this third stop, Foley "looked like he flew out of the vehicle," and walked "like he had some business," on the center median toward Mansker. Mansker had stopped approximately 50 feet behind the Oldsmobile. Mansker exited his vehicle, stood in its doorway, identified himself as a police officer and ordered Foley to stop. Foley did not obey. Mansker drew his firearm, again identified himself, and ordered him to stop. Mansker backed up to about the trunk of his vehicle, and Foley was approximately 10 feet away from Mansker. Foley said Mansker's firearm was a BB gun, and turned and walked away. Gaut exited the Oldsmobile, yelled something and returned inside. Foley drove off. Mansker pursued them.
At the intersection of Pomerado Road and Treadwell Drive, Gaut exited the Oldsmobile, walked toward Mansker and yelled at him. Mansker exited his vehicle, stood in its doorway and drew his firearm. He told her something like, "Police officer. Sit on the curb." Gaut did not respond, but yelled and returned to the Oldsmobile, which continued on Treadwell Drive. Mansker pursued them to Travertine Court. He saw the Oldsmobile stopped and "in the wrong-way traffic."
As Mansker approached, Foley got out the Oldsmobile and started walking toward Mansker's vehicle. Mansker stopped. Foley continued to approach "like he had some business to conduct," and reached about 20 feet away. Mansker "decided to go up the hill and discontinue any following because the situation had gotten too out of hand."
Mansker assumed the top of the hill was an exit. He realized it was a cul-de-sac, and turned his vehicle around facing downhill with its headlights on. Foley walked uphill towards Mansker's vehicle. Mansker reported to the dispatcher, "He's now got me cornered" and, "He just got out of his vehicle and chased me." Mansker observed Foley walking toward him, and Gaut driving the Oldsmobile slowly behind Foley.
Mansker exited his vehicle, stood in its doorway, again identified himself as a police officer, and ordered them to stop. He fired a warning shot into a dirt mound to let Foley know the firearm was not a toy. Mansker testified he "was hoping that they would go away" and realize his firearm was real and start following his orders. Immediately afterwards, Gaut drove the Oldsmobile around Foley and headed directly towards Mansker, who testified, "I thought she was going to crush me between my door and my car." Mansker fired two rounds at the Oldsmobile's hood, "hoping to jaunt it either right or left out of [his] direction." Mansker retreated to the rear of his vehicle. The Oldsmobile continued past the passenger door of Mansker's car, and he heard a loud noise that sounded like the Oldsmobile had hit something. He reported to dispatch, "I have one in a vehicle trying to run me down."
Foley continued walking toward Mansker's car and put his hand in the front of his waist band. Mansker thought Foley was reaching for a weapon. Mansker fired approximately three rounds. One hit Foley, who went down. Foley stood up, walked towards Mansker and again reached for his waistband. Mansker fired another shot and Foley fell. Mansker retreated to a nearby parked sports utility vehicle which he used for "cover and concealment." As Mansker stood in front of the vehicle, Gaut turned the Oldsmobile around, such that it faced Mansker, and kept its engine revving. Mansker thought she was going to drive toward him again. Mansker reported to dispatch, "I got at least one down. Still female in a vehicle." At that instant, other police officers arrived.
Robert Tockstein, a San Diego County Deputy Sheriff, testified he arrived at Travertine Court shortly after 3:37 a.m. and saw the Oldsmobile rolling slowly toward him. He ordered Gaut out of the Oldsmobile, but she said she could not change the gears. He reached in and easily slid the gear to the park position. Gaut appeared intoxicated. Tockstein detained her.
Raegen Carter, a criminalist, testified Gaut's blood sample was taken approximately an hour and a half afterwards, and her blood alcohol level was.15. Carter estimated that Gaut's blood alcohol level was.17 when she drove the Oldsmobile, at approximately 3:45 a.m.
Later that morning, detectives first interviewed Gaut for about 50 minutes regarding the incident. She stated she had been at a downtown San Diego club with an aunt and friends, and drank two Long Island Iced Teas. At approximately 2:30 a.m., she decided to leave with Foley to his home. Her aunt, Joyce Grubb, and a friend planned to go to their homes. After Foley exited the freeway, Gaut noticed a car following them. At one stoplight, Foley got out of the Oldsmobile and spoke to the driver of the pursuing vehicle. Foley did not tell her the driver was a police officer. The car followed them to Travertine Court. Approximately half-way up the hill leading to the top of the cul-de-sac, Foley got out of the Oldsmobile and walked toward Mansker. She heard Foley telling him something like, "Why are you following us? What do you want?" She saw Mansker pull out a gun. She yelled to Foley to return to the car, but he didn't. She heard gunshots and bent down in the car. The gunshots stopped, she got out of the Oldsmobile, and walked to the driver's side. She drove it into a driveway, reversed, turned around and went to pick up Foley. She stated Foley had a cell phone with him that night, but they did not discuss calling the police or 911 when they realized they were being followed.
Gaut stated she was not sure whether Foley was driving erratically on the freeway. She denied that Mansker drove past them and towards the cul-de-sac at Travertine Court. She stated the shooting occurred about midway uphill, and Mansker was following behind them the entire time. Gaut stated she had been arrested previously for operating a stolen vehicle, but the case was over and done with.
The detectives resumed the interview briefly at 10:22 a.m. and Gaut again denied Foley was driving erratically. A third portion of the interview occurred at approximately 12:31 p.m. The detectives again asked if she had exited the Oldsmobile at any time before she reached Travertine Court. She again denied doing so. The detectives told her the physical evidence did not match her version of events; specifically, the shooting took place uphill in the cul-de-sac. She denied it and insisted that she remembered the shooting happened down hill. She added, "That's how I remember it. I only know I was drunk, and that's what I remember."
Lance Martini was a criminalist with the San Diego Sheriff's Department at the time of the incident. He testified he arrived at Travertine Court shortly afterwards and helped with a reconstruction of the events. He opined that the physical evidence showed Mansker most likely moved behind his vehicle before firing two shots at the Oldsmobile, which continued over a curb. He reviewed Mansker's statements to the detectives — which were consistent with Mansker's trial testimony — and Gaut's statements to the detectives. Martini concluded that the physical evidence was more consistent with Mansker's account than with Gaut's.
Gayle Bybee testified she lived on Travertine Court. She was awakened on the morning of the incident by this sequence of sounds: a male and a female yelling, a car revving and two gunshots, followed by several more; a brief pause, and more gunshots.
The court denied Gaut's motion in limine to exclude from evidence recordings of her jailhouse conversations made days following the incident. The tapes were played to the jury. In one conversation, Gaut's aunt asked, "Is all that you're going through worth it?" Gaut replied, "No, but I mean it happened." Gaut's aunt stated there was no other witness to the events besides Gaut, who replied, "See, that's why they're gonna be, I'm gonna be... beneficial to [Foley], 'cause he gonna need a witness." In a conversation with her grandmother, Gaut stated, "I'm [Foley's] only witness. And he's my only witness" and she added, "So, I'm beneficial to him and he's beneficial for me."
Another conversation included this exchange:
"Gaut: I'm famous. I'm gonna get paid.
"Male: I don't call that famous, but.
"Gaut: Trick, I'm already famous.
"Male: I don't know about famous, but, you know what I mean.
"Gaut: Bullshit.
"Male: Huh?
"Gaut: Bullshit. I told you I was gonna get married.
"Male: You gonna get married?
"Gaut: Yeah.
"Male: Who said?
"Gaut: Foley.
"Male: You ain't talk to him yet, already.
"Gaut: I will.
"Male: When? When he gets (unintelligible)?
"Gaut: When he gets better, out of the hospital....
"...
"Male: You think you're gonna get paid?
"Gaut: I know I'm getting paid. I already got the ACLU already, already investigating my case. Got my shit going on. It's gonna be on Geraldo or one of them mother fucking shows.
"Male: So you gonna get paid from one of them?
Gaut: No, I'm get paid from, I'm, sue, uh, I got a civil case.
"Male: Based on what?
"Gaut: On the cop trying to kill me.
"Male: Oh.
"Gaut: For no apparent reason."
DEFENSE EVIDENCE:
Gaut testified at trial as follows: On September 2, 2006, close to midnight, she, Foley and their friends met at the club. She drank two Long Island Iced Teas, got "buzzed" but not "drunk falling down." When she was leaving the club, Foley invited her and her friends to his house. She rode with Foley, who drove his Oldsmobile. On the highway, her friends in another vehicle pulled up close to them and spoke to Foley. Foley took off, she fell asleep, and woke up at an intersection on Pomerado Road. She noticed flashing bright lights of a vehicle that was tailgating them. Foley exited his vehicle and yelled at the driver of the pursuing vehicle, who he described to Gaut as "maybe some crazy fan. It's nobody."
Foley continued to Travertine Court. Mansker followed him there and stopped behind the Oldsmobile. Foley exited. Mansker drove past them and up a hill. Foley returned to the vehicle and drove uphill. Mansker was parked facing downhill. Gaut could see Mansker pointing his gun. Gaut "kept telling [Foley] 'Just leave [Mansker] alone. Let's get out of here. This guy is crazy. He's going to do something." She told Foley, "just stay in the car. Just stay in the car." Nonetheless, Foley exited and walked towards Mansker's parked vehicle. She saw Foley fall to the ground. Gaut exited the Oldsmobile, got into the driver's seat, yelled at Mansker and started driving. She shouted at Foley that she was just going to turn around. The gears were difficult to operate and she could not reach the pedals because she was shorter than Foley. She did not see Mansker. She drove approximately 50 to 60 feet forward to the curb and over it, and stopped in a driveway. Initially, she could not reverse the Oldsmobile, and after she finally managed to do so, she had difficulty driving forward. She again revved the engine and the Oldsmobile "just started coasting. It just started rolling." She was next to Foley and yelled to him to open the passenger door. The police then arrived and told her to park the car. She struggled to do that. The police reached over her and put the gear in the park position.
Gaut testified that, days before the incident, she had tried to drive the Oldsmobile, but she could not put it in gear. Foley put it in gear and she reversed it, but it accelerated. Foley told her, "This is not going to work. You can't drive it."
At trial, Gaut acknowledged that her statements to detectives differed on some critical points from her trial testimony. Specifically, she had told detectives that Mansker was standing in the driver's doorway of his car when he shot at Foley. At trial, she testified Mansker was on the passenger side of his car when he fired at Foley. She also had told the detectives that as she was reversing from the driveway on Travertine Court, she saw Mansker standing in the driveway. She explained the contradictions by stating, "Well, my lawyer has convinced me that it didn't happen exactly that way. And I realize that now." Gaut also admitted that on September 3, 2006, an arrest warrant was outstanding on charges that she received a stolen vehicle and committed forgery. At trial, she denied she exited the vehicle at the intersection of Treadwell and Creek, or that Mansker ordered her to sit at the curb. She also denied he identified himself as a police officer.
The parties stipulated at trial: "That on September 2nd of 2004, a felony bench warrant of arrest was issued against Ms. Gaut from the Solano County Superior Court that was still outstanding and in the law enforcement computer systems as of September 3rd, 2006.... Those charges were pending,... and Gaut was addressing them in Solano County."
Joyce Grubb testified that on September 3, 2006, after the club closed, she, Gaut and their friends stayed in the parking lot until approximately 3:00 a.m., and planned to follow Foley and Gaut to Foley's house. On the freeway, she pulled up next to the Oldsmobile and one of her passengers talked with Foley. Foley took off, and she followed but could not catch up to him. She telephoned Foley, but got no answer; therefore, she turned around and went home.
Joseph Awad, a forensic accident reconstructionist, testified, "I looked at and reviewed in detail [Martini's] final report and was in agreement with a great majority of it. There was just a couple of statements that I had issue with that were made within the report because I just felt they were contradictory." Specifically, Awad agreed with Martini regarding the "relative positions of the [Oldsmobile and Mansker's vehicle] for both shots to the passenger and driver's side tire[s]." Awad testified, "The analysis that was done to determine the dowel trajectories of the bullets into the tires make this scenario here certainly consistent and is also consistent with some of the testimony with regard to Mansker indicating that he was backing up, pulling away behind a position from his vehicle, and it's consistent with locations of casings." Nonetheless, Martini acknowledged one of his diagrams was not to scale, and Awad testified that fact "makes a... difference when you're looking at some of the specifics of the measurements." Awad also disputed that Mansker could have seen Foley's right hand reaching into his waistband. Awad testified "there [was] no physical evidence whatsoever of [the Oldsmobile] actually coming at or assaulting [Mansker's] position."
DISCUSSION
I.
Gaut contends insufficient evidence supported her conviction for assault. As she puts it: "The reality of the evidence is that [she] was placed in an untenable position — she drove directly into the bright headlights of Mansker's car toward the top of the dark cul-de-sac, with the seat way back, stretching to reach the strange gas pedal, attempting to manipulate the difficult gear shift, on a mission to get to Foley, whom she witnessed being shot by a guy who had been following them for miles."
In reviewing a challenge to the sufficiency of the evidence, we examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence" from which "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We are mindful that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) We do not reweigh the evidence or redetermine issues of credibility. (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Testimony of a single witness is sufficient to support the verdict. (People v.Chavez (1985) 39 Cal.3d 823, 831; CALCRIM No. 301.)
As analyzed in People v. Williams(2001) 26 Cal.4th 779 (Williams), under Section 245, subd. (a)(1), any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm, or by any means of force likely to produce great bodily injury shall be punished. "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Williams, supra, at p. 790.) "The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.... The evidence must only demonstrate that the defendant willfully or purposefully attempted a 'violent injury' or 'the least touching,' i.e., 'any wrongful act committed by means of physical force against the person of another.' [Citation.] In other words, '[t]he use of the described force is what counts, not the intent with which same is employed.' [Citation.] Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state." (People v. Colantuono (1994) 7 Cal.4th 206, 214-215; see also People v. Golde (2008) 163 Cal.App.4th 101, 108.) The jury was instructed that "[s]omeone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." (CALCRIM No. 875.)
Initially, we note Gaut overlooks that the standard of review prohibits us from reweighing the evidence to favor her testimony over the jury's contrary findings. (People v. Golde, supra, 163 Cal.App.4th at p. 109 ["This is merely an argument for a different interpretation of the evidence, an argument which misperceives our standard of review"].)
Mansker's reports to the dispatcher regarding the unfolding events and his trial testimony provided substantial evidence to support the conviction. Specifically, Mansker reported regarding Gaut, "I have one in a vehicle trying to run me down." He also reported, "Female still in a vehicle." His trial testimony showed that he was at the Travertine Court, a cul-de-sac, with no escape route. He shot an advancing Foley. But Gaut, undeterred, drove the Oldsmobile toward him. Mansker had to retreat to the back of his car to avoid her smashing into his car and crushing him. She drove to the curb and over it.
Martini testified that the physical evidence and his reconstruction of the incident supported Mansker's testimony on critical points, and contradicted Gaut's statements. Even Awad, the defense reconstruction expert, agreed that the physical evidence was consistent with Mansker's testimony that he was retreating behind his car when he fired at the Oldsmobile thus bolstering Mansker's claim that he retreated to avoid Gaut crushing him with the Oldsmobile.
II.
Gaut next contends the trial court erroneously admitted into evidence recordings of four of her jailhouse telephone calls because they were irrelevant and only sought to "demonize" her. Gaut adds, "The prosecutor's ostensible reason for admission was to show appellant's bias, her cavalier attitude, her lack of fear, her telling people not to talk, and her expressed interest in making money off this incident. As [defense] counsel argued, what was relevant was her interview with the detectives hours after the incident — which demonstrated how she viewed the incident — and that certainly reflected her fear."
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value (People v. Horning (2004) 34 Cal.4th 871, 900)and its decision to admit evidence under Evidence Code, section 352 will be reversed only upon a clear showing of abuse. (People v. Turner (1990) 50 Cal.3d 668, 703-705.) Evidence that is excessively prejudicial must be excluded under that statute. "Prejudice" does not mean harm because, generally speaking, most evidence offered against a party is harmful to the party's case. Rather, "undue prejudice" means the evidence invites a response from the jury that borders on the irrational. (People v. Garceau (1993) 6 Cal.4th 140, 178, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
Here, the court analyzed the admissibility of the recordings under Evidence Code section 352 and tentatively ruled, "My sense is that many of the statements made by Ms. Gaut in each of these conversations have significant probative value. There are statements by her, or by others which she appears to adopt, that touch on what actually happened on the early morning of September 3rd, 2006. Those are arguably admissions. [¶] There are places where it seems to the court she might logically be expected to give a response other than the response she gives or to make a statement other than the statement that she makes if her contention is that she did not know that Officer Mansker was a police officer. Moreover, the court has read and listened to, in fact, these recordings with an eye towards credibility of witnesses. [¶] I particularly have in mind Evidence Code section 780 [subdivision] (f) which talks about bias or other motive not to tell the truth, and 780 [subdivision] (j) which allows or requires the trier of fact to consider the witness's attitude about the case or about testifying. I think that while certainly the contents of these conversations may be susceptible of more than one interpretation, at least one interpretation would be highly relevant on the issue of bias and attitude about the case and about what actually happened out there."
The trial court addressed Gaut's objections: "I noted that on at least some instances the F word is used in places where it demonstrates attitude toward the case. Moreover, I think that in this day and age the F word itself is not going to be unduly prejudicial. [¶] I will certainly consider giving any limiting instruction at the end of the case that counsel wishes to propound about that. And my sense is that this jury is going to be sophisticated enough that rough language alone is not going to steer them away from their fact-finding duties in this case."
The court confirmed its tentative ruling and redacted the recordings to eliminate prejudicial, time consuming or irrelevant statements. The court reiterated, "There is some rough language. I'll be happy to entertain a — the giving of a limiting instruction. And if one is proffered, I think this jury is intelligent enough not to let the rough language blind them to making a real assessment of the evidence." Gaut did not accept the court's offer.
Gaut specifically cites to the prosecutor's use of the following telephone conversation between Gaut and her aunt, Joyce:
"Gaut: It's all (unintelligible) they have no evidence, it's just a cop against me.
"Joyce: Yep.
"Gaut: And Fucking Foley, who's just a punk ass. I'm hot now. It's fucked up.
"Joyce: Yep.
"Gaut: And little do he know, I could get his ass, too.
"Joyce: What?
"Gaut: I said, little do he know I could get his ass too."
We agree with the trial court that the redacted recordings were admissible to challenge Gaut's credibility under Evidence Code section 780. In the above-quoted conversation, Gaut implied that she could incriminate Foley with information she had from being the sole percipient witness. This evidence was probative because it cast doubt on the truthfulness of both her earlier statements to the detectives and her trial testimony. Other portions of the recordings — in which Gaut claimed she would be famous and would get married to Foley — were probative because they indicated Gaut might have had ulterior motives to tailor her trial testimony to maximize her personal benefit. In other conversations, Gaut stated there was no evidence against her. She also made probative admissions regarding her version of the incident that were admissible under Evidence Code sections 1220 and 1221 regarding party admissions and adoptive admissions respectively.
Gaut's use of profanities and slang in the recordings did not cause undue prejudice in this context. In People v. Edelbacher (1989) 47 Cal.3d 983, 1009, testimony was admitted from an individual who commented that the defendant in that case was a
" 'crazy son-of-a-bitch,' and numerous instances of offensive language." (Ibid.) The California Supreme Court stated, "Jurors today are not likely to be shocked by offensive language and any risk of prejudice was outweighed, as the trial court determined, by the probative value of the evidence." (Id., at p. 1009.) The same analysis applies here, and we think Gaut suffered less prejudice because nobody challenged her sanity or insulted her personally. Rather, she used profanities that are even more commonly heard in conversations and movies today than when Edelbacher was decided. Gaut has not argued, and we see no indication, that the introduction of these recordings led to an undue consumption of time, confusion of the issues or misleading of the jury. Accordingly, the trial court's analysis was reasonable, and not an abuse of discretion.
III.
Gaut contends her state and federal constitutional rights to due process and a fair trial were violated because the trial court declined her request to instruct with CALCRIM No. 3402 regarding duress or threats. Gaut contends, with no citation to the record, that a duress instruction was warranted because "she was acting under an implied demand that if she did not get into the vehicle to go to Foley's rescue, there was an immediacy to the danger of his being shot again and of the shooter (whom [she] did not know was a police officer) shooting her." She also asserts this duress defense was applicable to the charges that she was driving under the influence of alcohol and driving with a blood alcohol level above.08.
As modified for purposes of this case, CALCRIM No. 3402 reads, "The defendant is not guilty of [the crime] if [she] acted under duress. The defendant acted under duress if, because of threat or menace, [she] believed that ([her] [or] someone else's) life would be in immediate danger if [she] refused a demand or request to commit the crime[s]. The demand or request may have been express or implied."
The trial court ruled: "It seems to me that the case law says that the difference between necessity and duress is this: If the threatened harm is in the immediate future, that is, if it's imminent but it is in the future, the defendant is balancing two choices, and I think the necessity law says that as a matter of public policy, if the conditions are met, then the person is privileged to commit an act that would otherwise be a crime and would exempt that person from criminal liability. [¶] Duress is a situation in which the actual mental state or intent element of the crime is negated because of the immediacy of the threat.... I think the [CALCRIM No.] 3403 [Legal Necessity] instruction is appropriate. I'm going to give [it] as proffered as to the necessity defense as to all counts. I'm not going to give a duress instruction."
The court instructed regarding necessity with CALCRIM No. 3403 as follows:
People v. Petznick (2003) 114 Cal.App.4th 663 (Petznick), explains, "[T]he defense of duress negates the intent or capacity to commit the crime charged. Defendant needs to raise only a reasonable doubt that he acted in the exercise of his free will. [Citation.] In order to show that his act was not the exercise of his free will, defendant must show that he acted under an immediate threat or menace. [Citation.] 'Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime. The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent. The unlawful acts of the person under duress are attributed to the coercing party who supplies the requisite mens rea and is liable for the crime. [Citation.]' [Citation.] Decisions upholding the duress defense have uniformly involved ' "a present and active aggressor threatening immediate danger." ' [Citation.] A 'phantasmagoria of future harm' such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability." (Petznick, supra, at pp. 676-677.)
"The defenses of duress and necessity are clearly different. The duress defense, through its immediacy requirement, negates an element of the crime — the intent to commit the act. The defendant does not have the time to form criminal intent because of immediacy and imminence of the threatened harm and need only raise a reasonable doubt as to the existence or nonexistence of this fact. [Citation.] The necessity defense, in contrast, contemplates a threat in the immediate future. [Citation.] The defendant has the time, however limited, to consider alternative courses of conduct. The defendant has the burden of proving necessity by a preponderance of the evidence." (People v. Heath (1989) 207 Cal.App.3d 892, 901.)
In deciding whether defendant was entitled to an instruction regarding duress, we take the proffered evidence as true, regardless of whether it was of a character to inspire belief. We resolve doubts as to the sufficiency of the evidence in favor of the accused. (Petznick, supra, 114 Cal.App.4th at p. 677.) Evidence of a defense is sufficiently substantial if it is "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) It has also been defined as "evidence sufficient for a reasonable jury to find in favor of the defendant." (People v. Salas (2006) 37 Cal.4th 967, 982.) We independently review whether substantial evidence to support a defense existed. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Gaut concedes that no one expressly demanded or requested that she commit any crime; therefore, she claims, "she was acting under an implied demand." But she has not pointed to any evidence, least of all substantial evidence, to show she was under an implied demand to drive the Oldsmobile toward Mansker, under the influence of alcohol, which had reached an elevated level in her blood. We find no such evidence. Rather, the more appropriate instruction in this context was on necessity because it took into account that Gaut "acted in an emergency" and possibly acted "to prevent significant bodily harm or evil to herself or someone else." Even with this instruction, which set forth a standard that was easier for Gaut to meet, the jury rejected this defense. It is reasonably likely it also would have rejected the duress defense, which presented a higher standard — that of negating her intent or capacity to commit the crime. In any event, any error in declining a duress instruction was harmless in light of the substantial evidence supporting Gaut's convictions. Accordingly, the contention fails.
IV.
We reject Gaut's contention that the trial court erroneously declined to instruct regarding self-defense with CALCRIM Nos. 3470, 3471, 3472 and 3474, in violation of her due process rights under the federal Constitution.
Self-defense instructions are required when the defendant reasonably believes the defendant or someone else was in imminent danger of suffering bodily injury; the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and the defendant used no more force than was reasonably necessary to defend against that danger. (Accord, People v. Stitely (2005) 35 Cal.4th 514, 551.)
In discussions outside of the presence of the jury, this exchange took place
regarding the proposed self-defense instructions:
"[Defense Counsel:] I'm saying that if you decide that it is the use of force, that what [Gaut] did in fact met the requirements of [section] 245, count 1 and 2, then you could find that she acted in self-defense.
"The Court: And what would the evidence be, can you point it out to me, on which a jury could find that [Gaut] reasonably believed that she had to use that force to defend Mr. Foley? In other words, she didn't believe she had to use force to defend Mr. Foley. She didn't believe she used force at all against Mr. Mansker, if I understand the defense theory in this case.
"[Defense Counsel:] That's one of them.
"The Court: So what are you proposing to say, that she didn't intend to use force at all, but if she did intend to use force, it was in self-defense?
"[Defense Counsel:] Yes, basically."
The court declined to give the instructions, ruling, "There is no evidence that [Gaut] believed she needed to use force. All the evidence is that she believed she wasn't using any force because she never saw Officer Mansker there and she wasn't trying to attack him."
In accord with the trial court's ruling, CALCRIM Nos. 875 and 860 were modified to delete a sentence stating, "The defendant did not act in self-defense or in defense of someone else."
Gaut's argument on this point is limited to this one sentence in her opening brief: "Here, the evidence is more than sufficient to warrant instructions on self-defense." However, that conclusory statement does not meet Gaut's burden of proof to show evidence supporting the requested instructions. "The trial court need not give such instructions on request absent substantial evidence to support them." (People v. Stitely (2005) 35 Cal.4th 514, 551.) As the trial court found, Gaut testified that she had difficulty changing the Oldsmobile's gears; did not see Mansker, and focused only on picking up Foley after he was shot. We conclude the trial court did not err in declining to instruct regarding self-defense because Gaut's testimony was insufficient to show self-defense, and that theory was inconsistent with Gaut's theory that she did not drive the Oldsmobile in Mansker's direction.
V.
Gaut contends the court erroneously instructed with CALCRIM No. 361 regarding her failure to explain adverse testimony.
CALCRIM No. 361 states: "If the defendant failed in [her] testimony to explain or deny evidence against [her], and if [she] could reasonably be expected to have done so based on what [she] knew, you may consider [her] failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Gaut relies on four contradictions, which we set forth verbatim from her opening brief:
First, "When asked on direct if she ever recalled Mansker pulling next to them on Pomerado Road and demanding that Foley pull to the side of the road because he was a police officer, [Gaut] answered, 'I don't remember that happening.' On cross examination, to the prosecutor's question, 'Are you saying that didn't happen, or you just don't remember, [Gaut] answered, 'He didn't pull alongside of us.' "
Second, "Mansker had testified that Foley stopped the car past the intersection of Treadwell Drive and Creek, that [Gaut] got out of the car, that Mansker pointed his gun at her and ordered her to the curb. [Gaut] testified that it did not happen."
Third, "[Gaut] testified that Foley turned right on Travertine Court and stopped in front of his house. The other car stopped right behind them with his [sic] lights on. Foley got out of his car, and Mansker sped past them up the hill. [Gaut] did not see Mansker back up on the curb at the entrance of the cul-de-sac. When the prosecutor noted that [Gaut] did not say this in her sheriff's interview on September 3, 2006, she testified, 'Well, they were trying to tell me how it happened, and I was telling them that that's not how it happened."
Fourth, "Foley stopped the car — she was not sure where — but, it was before the other car at the top of the hill — maybe three car lengths. He got out of the car and started walking toward the guy. Apparently, this was the first time [Gaut] had said that Foley twice got out of the car on Travertine Court. During her police interview, she said he only got out one time. Foley was illuminated by the other car's headlights and the Oldsmobile's headlights. Mansker did not get out of his car until Foley got out of his car. [Gaut] denied it was true that 'Mr. Foley's out on foot in the lower part of the cul-de-sac, and Mr. Foley is marching up this hill with you driving behind him up the hill." She acknowledged that she drove into [sic] the top of the cul-de-sac but reiterated, 'I didn't drive up the hill.' "
We agree Gaut explained these contradictions; therefore instruction with CALCRIM No. 361 was not necessary. However, any error was harmless under the Watson (People v. Watson (1956) 46 Cal.2d 818) standard. (People v. Lamer (2003) 110 Cal.app.4th 1463, 1471-1472.) By its own terms, this instruction applied only if the defendant "could reasonably be expected to have [failed to explain or deny evidence against her] based on what she knew." Therefore, Gaut's explanations of the above contradictions eliminated any adverse impact caused by this instruction. Moreover, we set forth above the substantial evidence supporting the convictions. We also note the jury was instructed that some of the instructions may not apply, depending on the jury's findings about the facts of the case. (CALCRIM No. 200.) Accordingly, we conclude it was not reasonably probable that the jury would have reached a different verdict absent instruction with CALCRIM No. 361.
The People do not dispute that Gaut explained or denied the above contradictions, but rather point to a separate alleged contradiction: Although Gaut claimed she drank only two Long Island Iced Teas, her blood alcohol content was elevated when the incident occurred. The People overlook that Gaut more than once denied and explained this apparent contradiction on cross-examination as, for example, in the following exchange:
VI.
Gaut contends the court erroneously instructed regarding flight because no evidence supported the instruction. We conclude that the jury reasonably could find flight based on Tockstein's testimony that he saw Gaut driving the Oldsmobile, which was rolling forward. He ordered her to stop but she did not. He had to lean over her to put the car in the park gear. Even assuming this evidence did not support the flight instruction, any error was harmless under the Watson standard. (Cf. People v. Crandell (1988) 46 Cal.3d 833, 870, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [applying Watson standard to erroneous instruction on permissible inferences from trial evidence].) It was not reasonably probable Gaut would have received a more favorable outcome absent the flight instruction, which "did not assume that flight was established, leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61 .)
The court instructed with CALCRIM No. 372 as follows:
VII.
Gaut contends the trial court violated the "Sixth Amendment guarantees 'to have compulsory process for obtaining witnesses in her favor.' " by denying her motion for a continuance that was filed after her conviction but before sentencing.
" 'Continuances shall be granted only upon a showing of good cause.' (Pen. Code, § 1050, subd. (e).) 'The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.' [Citation.] 'The burden is on [the defendant] to establish an abuse of judicial discretion....' [Citation.] '[A]n order of denial is seldom successfully attacked.' " (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Here, the jury rendered its verdict on April 26, 2007. On June 22, 2007, the day scheduled for sentencing, the court heard arguments regarding Gaut's motion to continue the sentencing hearing. Her counsel argued, "We're trying to buy some time, quite frankly, so that we can get Mr. Foley's testimony, bring it before the court and ask you to determine whether that would be sufficient enough to grant a new trial". Defense counsel added, "After the conclusion of [Gaut's] case, Mr. Foley pled guilty... approximately one week later. And therefore — was sentenced, I assume on the same day that he pled guilty. [¶] Now he is legally available to testify. And we believe that it would have been... possibly important for the conclusion of Ms. Gaut's case that he testify. In fact, as you well know, he was one of only three eyewitnesses in that particular case."
The court denied the motion, ruling, "[W]aiting for Mr. Foley's deposition on the chance that it might provide some information helpful to the defense, is speculative at best. We don't know when Mr. Foley's deposition will take place. It may take place in July or August. [¶] If it takes place, we're told there may be some helpful information to the defense. Although, I'm not offered any real ideas of what that might be. It seems to me that that is an 'if' followed by a 'maybe.' I don't find that constitutes good cause for a continuance."
Defense counsel also sought the continuance because he was unable to prepare for the sentencing hearing. The court addressed that concern: "I think everybody was put on notice that they were given eight weeks to get prepared for this sentencing hearing. [¶] I would also indicate that I think Ms. Gaut's attorneys have done an effective job at trial in demonstrating, among other things, their theory that Ms. Gaut was a confused young woman who was thrust into a set of chaotic circumstances that night rather than someone who was launching a deliberate attack on Officer Mansker." The court observed those points were "helpful to the sentence in question [and had] been effectively developed by the defense at trial."
Gaut claims the continuance would have been for less than two months and that it would "secure" the testimony of Foley, a percipient witness whose "testimony would have been material and directly relevant to her defense." Gaut did not support her motion with evidence that Foley's deposition would have been timely initiated or completed or that his testimony would yield evidence sufficient to undermine the jury's verdict in her case. Accordingly, Gaut has not shown that the trial court "exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice" (People Jordan (1986) 42 Cal.3d 308, 316.) The record does not show that Gaut filed a motion for a new trial, or provided any basis to anticipate that Foley's testimony would satisfy the statutory basis for a new trial. (§ 1181.)
Gaut has pointed to no legal authority supporting the applicability of the Sixth Amendment of the federal Constitution in the context of a post-conviction motion for a continuance of a sentencing hearing. She relies on cases which dealt with pre-conviction proceedings. We need not address this issue in light of our resolution of this claim.
VIII.
Gaut urges us to find cumulative error based on the combined assignment of errors. We decline. In a close case, the cumulative effect of multiple errors may be sufficient to cause the trial to have been unfair and hence cause a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403.) Multiple errors may require reversal even when the errors, considered individually, would not warrant the same conclusion. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors, it is reasonably probable that the jury would have reached a result more favorable to a defendant, the decision must be reversed. (People v. Holt (1984) 37 Cal.3d 436, 459.) Having found only one harmless instructional error, we reject this argument.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.
"The defendant's belief that [her [or] someone else's] life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed.
"A threat of future harm is not sufficient; the danger to life must have been immediate.
"[The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty.]" (CALCRIM No. 3402.)
"The defendant is not guilty of the crimes charged if she acted because of legal necessity.
"In order to establish this defense, the defendant must prove that:
"1. She acted in an emergency to prevent a significant bodily harm or evil to herself or someone else;
"2. She had no adequate legal alternative;
"3. The defendant's acts did not create a greater danger than the one avoided;
"4. When the defendant acted, she actually believed that the act was necessary to prevent the threatened harm or evil;
"5. A reasonable person would also have believed that the act was necessary under the circumstances;
AND
"6. The defendant did not substantially contribute to the emergency.
"The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true."
"[Prosecutor:] Were you drunk?
"[Gaut:] No, I was not drunk.
"[Prosecutor:] When you got in the car, were you drunk?
"[Gaut:] No.
"[Prosecutor:] What is 'drunk' to you?
"[Gaut:] Drunk to me is where you're incoherent, you don't know what's going on, falling down, can't walk straight." Accordingly, instruction with CALCRIM No. 361 was not necessary.
"If the defendant fled or tried to flee immediately after the crime was committed that conduct may show that she was aware of her guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."