Opinion
C089522
08-25-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHN HARDNEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 14CR22899
BLEASE, ACTING P. J.
Defendant John Hardney, a prisoner serving a life term at Mule Creek State Prison, masturbated in the sight of two female prison employees, each on a separate occasion. He also resisted officers after the first incident. Defendant, who represented himself in his jury trial, was convicted of resisting an executive officer (Pen. Code, § 69) and two counts of misdemeanor indecent exposure (§ 314). After the jury sustained four strike allegations the trial court sentenced defendant to 25 years to life, to run consecutively to his current term.
Undesignated statutory references are to the Penal Code.
He contends on appeal: (1) it was prejudicial error to not instruct on section 148, misdemeanor resisting an officer, as a lesser included offense of the section 69 charge; (2) the court erred in denying his motion to dismiss the indecent exposure charge in count 3 because no evidence to support the charge was presented at the preliminary hearing; (3) there was insufficient evidence to support the indecent exposure convictions; (4) the trial court failed to exercise or abused its discretion in denying his request for advisory counsel; (5) it was an abuse of discretion and denial of due process to exclude defense witnesses from testifying; (6) it was an abuse of discretion to deny his new trial motion; and (7) the instruction on the burden of proof at the trial on the strike allegations was prejudicial error.
The trial court prejudicially erred in failing to instruct on misdemeanor resisting an officer as a lesser included offense of the section 69 charge. Finding the court should have dismissed the count 3 charge and the remaining contentions without merit, we shall reverse the felony resisting offense in count 1 and give the People the option of accepting a modified conviction under section 148 or retrying defendant on the greater offense. We shall also strike the indecent exposure conviction in count 3 and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
First Incident
On October 10, 2014, at around 8:15 p.m., psychiatric technician Rebecca W. was passing out medications at Mule Creek State Prison. As she was standing in the custody area, she looked up and made eye contact with defendant, who was in his cell. Defendant's cell was on the tier above Rebecca, and around 15 to 30 yards away. The cell had a window that was about six to eight inches wide and 36 inches high. Defendant had already been looking at Rebecca when she made eye contact. He was sitting in the upper bunk masturbating. His underwear was down and she could see defendant stroking his erect penis.
Rebecca yelled at defendant to stop, but he continued masturbating while making eye contact with her. After she told Correctional Officer Alonzo Pogue what was happening, Officer Pogue and Correctional Officer Jonathan Hickman went to talk to defendant. When Rebecca again asked defendant to stop, he put his penis back into his shorts, threw up his hands, and yelled, “What?” before turning off his cell light.
Officer Pogue entered defendant's cell, where he found defendant in his boxer shorts and the light off. When the officer told defendant he had reportedly exposed himself to a psychiatric technician, an irate and argumentative defendant yelled, “I can beat my meat to whoever I want.” Officer Pogue closed the cell door and went to his sergeant, who advised him to put defendant in restraints and escort him to the program office.
Officers Pogue and Hickman returned to the cell; Officer Pogue ordered defendant to submit to being handcuffed. Defendant remained irate and argumentative, refusing to leave the cell or get handcuffed until finally relenting after several minutes. He was still irate as the officers escorted him to the medical office, about 250 yards away.
A nurse started a medical evaluation of defendant at the medical office. A sergeant advised a still agitated defendant that he was being transferred to administrative segregation for sexual misconduct. Defendant yelled angrily that they cannot “tell me who I beat my meat to.”
Defendant was handcuffed from behind, while officer Pogue held him by the wrist and shoulder. When defendant tried to pull away from Officer Pogue, the officer twice told defendant to stop, but defendant continued to jerk around. Officer Pogue used his body weight to put defendant against the wall, subduing him. In response, defendant yelled several times, “Fuck you Pogue, Fuck you Pogue.”
Officers Pogue and Hickman secured defendant and moved him from the clinic to the program office. As they walked, defendant yelled, “fuck you, Pogue. I will beat my meat anytime and to whoever I want to.” Defendant jerked his body from side-to-side, momentarily breaking free from Officer Hickman. Defendant continued to jerk his body as they walked; after breaking free from both officers, defendant spun to the right, as if he was going to spit or head-butt Officer Pogue. Officer Pogue dodged defendant, and then swept defendant's feet out from under him, pulling defendant to the ground onto his stomach. The officers then secured defendant and moved him to a holding cell.
Second Incident
Medication nurse Jennifer N. was distributing medicines in Mule Creek's administrative detention section on April 3, 2015, at around 6:23 p.m., when she saw defendant masturbating as she entered the C side of the building. Defendant's boxers were down to his knees and he was vigorously stroking his penis while looking at Jennifer. Jennifer made eye contact with defendant, who did not look surprised or avert his eyes. She reported the incident to officers; defendant stopped when an officer approached him.
The Defense
Correctional Captain Robert Roy testified that defendant claimed excessive force on the day of the first incident. He wrote a report in which he concluded Officers Pogue and Hickman did not employ excessive force.
DISCUSSION
I
Lesser Included Offense Instruction
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte on resisting a peace officer under section 148, subdivision (a)(1) as a lesser included offense of the section 69 charge.
The trial court possesses a sua sponte duty to instruct on all lesser included offenses “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]' ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, “the existence of ‘any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration' by the jury. [Citations.] ‘Substantial evidence' in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]”' that the lesser offense, but not the greater, was committed. [Citations.]” (Id. at p. 162.)
“For purposes of determining a trial court's instructional duties, ... ‘a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]' [Citations.]” (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).)
Section 69 imposes felony or misdemeanor liability on anyone “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty.” (§ 69, subd. (a).) “The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 814.)
Section 148, subdivision (a)(1) imposes misdemeanor liability on anyone “who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician... in the discharge or attempt to discharge any duty of his or her office or employment.”
“[S]ection 148[, subdivision] (a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense.” (Smith, supra, 57 Cal.4th at p. 240.) However, “[a] person who violates section 69 in the second way-by ‘knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty'-also necessarily violates section 148[, subdivision] (a)(1) by ‘willfully resist[ing]... any public officer... in the discharge or attempt to discharge any duty of his or her office or employment.' [Citation.]” (Id. at p. 241.) Thus, where, as here, the accusatory pleading charges the defendant with both ways of violating section 69, section 148, subdivision (a)(1) is a lesser included offense of section 69 as alleged in the accusatory pleading. (Smith, at p. 243.) Nonetheless, this “does not end the analysis because a trial court is not required to instruct the jury on a necessarily included lesser offense ‘ “when there is no evidence that the offense was less than that charged.”' [Citation.]” (Id. at p. 245.) Here, the trial court was not required to instruct the jury on section 148, subdivision (a)(1) if “[t]here was no evidence that defendant committed only the lesser offense of resisting the officers without the use of force or violence....” (Smith, at p. 245.) Further, even if the trial court failed to instruct on the lesser included offense, we may not reverse defendant's conviction unless we conclude it is reasonably probable he would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
The prosecution's theory of the case was that defendant knowingly used force when resisting, so the jury was instructed only with CALCRIM No. 2562, which defines knowing resistance by force or violence. Defendant's initial refusal to be handcuffed and leave the cell is evidence he passively resisted. Although there is also evidence of more significant resistance, including defendant's jerking around until he broke free and then making a side to side motion that some witnesses interpreted as trying to head-butt or spit at Officer Pogue, this is not necessarily resistance by force. Pulling away from someone need not always be deemed forceful even where, as here, defendant managed to get away from Officer Pogue. Likewise, while defendant moved suddenly to face Officer Pogue, he did not actually touch or spit on him; although Officer Pogue wound up pinning defendant against the wall to subdue him, this does not necessarily signal that there was no evidence of something less than forceful resistance. Although there is sufficient evidence to convict defendant of the greater charge, substantial evidence supports instruction on the lesser offense. The trial court's failure to instruct on section 148 was error.
Failure to instruct sua sponte on a lesser included offense is subject to the People v. Watson (1956) 46 Cal.2d 818 (Watson) standard of harmless error. (People v. Beltran (2013) 56 Cal.4th 935, 955.) Given the relative closeness of the case on this charge, as there was evidence of passive resistance and the evidence supporting the greater offense involved relatively mild application of force by defendant, we find it is reasonably probable defendant would have obtained a more favorable result had the jury been instructed on section 148 as a lesser included offense.
The proper remedy in a case such where there is substantial evidence to support the greater offense prejudicial error in failing to instruct on the lesser, is to reverse the conviction on the greater offense, give the People an opportunity to retry the defendant on that charge, and order that the conviction be modified to the lesser offense in the event that the People elect not to retry the defendant. (People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Springfield (1993) 13 Cal.App.4th 1674, 1681.) We shall do so. Since the lesser offense here, section 148, subdivision (a), is a misdemeanor, resentencing is necessary if defendant is convicted of the lesser offense.
II
No Evidence of Count 3 at the Preliminary Hearing
Defendant was charged in an amended complaint with two misdemeanor counts of indecent exposure, with count 2 covering the October 10, 2014 incident, and count 3 the April 15, 2015 incident. The prosecution presented evidence supporting count 2 but no evidence in support of count 3 at the preliminary hearing. The trial court certified both misdemeanor counts under section 314, subdivision (1). When defendant requested dismissal of count 3, the trial court denied the request, agreeing with the prosecutor that the People were not required to present proof for this offense. After defendant was arraigned on the information which included count 3, representing himself, he filed a motion to dismiss on the ground that the holding order was not supported by sufficient evidence of probable cause. Defendant asserted the prosecution must establish at the preliminary hearing probable cause to support all offenses, and the failure to provide evidence as to count 3 mandated its dismissal. The trial court construed this as a section 995 motion. It denied the motion, finding that in a felony case, misdemeanors not transactionally related to the charged felonies did not have to be supported by probable cause at the preliminary hearing.
Defendant contends count 3 must be stricken because no evidence in support of it was presented at the preliminary hearing. We agree.
Felonies must be prosecuted by indictment or information, based on a showing of probable cause at a preliminary hearing and an order holding the defendant to answer the charge. (People v. Martinez (2000) 22 Cal.4th 750, 758.) Misdemeanors, by contrast, may be prosecuted by written complaint without an order holding the defendant to answer based on a showing of probable cause at a preliminary hearing. (§ 740; Medellin v. Superior Court (1985) 166 Cal.App.3d 290, 292.)
But when, as here, a misdemeanor charge is prosecuted by information as part of a “felony case” (§ 691, subd. (f) [defining felony case as including criminal action in which misdemeanor is charged in conjunction with felony]), the misdemeanor charge must be supported by a showing at a preliminary hearing of probable cause to believe the defendant is guilty of the charge and an order holding the defendant to answer the charge based on the probable cause showing. (Griffith v. Superior Court (2011) 196 Cal.App.4th 943, 953-954; §§ 737-740, 872.) As the Griffith court put it, “no crime, be it a felony or a misdemeanor, can be included in an information unless it has been supported by a showing of probable cause at the preliminary hearing. (§§ 737-740, 871-872.)” (Griffith, at p. 954.)
The trial court and the Attorney General rely on People v. Thiecke (1985) 167 Cal.App.3d 1015 (Thiecke) for the proposition that a misdemeanor not transactionally related to the charged felony does not have to be supported by probable cause at the preliminary hearing. In Thiecke, a case decided before trial court unification, the People appealed from the trial court's dismissal of two misdemeanor counts because no evidence was given in support of them at the preliminary hearing. (Id. at p. 1017.) A panel of this court noted that while the superior court generally did not have jurisdiction over misdemeanors, they could be joined to felonies under section 954 when they “are ‘connected together in their commission.' [Citation.]” (Ibid.) We held that “[a] misdemeanor connected in its commission and jointly charged with a felony is within the jurisdiction of the superior court, ” but if “a preliminary hearing has not been waived, misdemeanor charges in an information filed in superior court are subject to dismissal if the evidence taken before the magistrate does not establish probable cause to believe defendant guilty thereof. [Citations.]” (Id. at p. 1018.)
Thiecke did not address the situation here, whether a misdemeanor not related to a felony may be charged in an information without evidence of probable cause at the preliminary hearing. Such facts were not and could not have been before the Thiecke court because, before unification, only transactionally related misdemeanors could be joined with felonies. While unification now allows the joinder of unrelated misdemeanors to felonies (see § 954), it does not follow that, under Thiecke, unrelated misdemeanors are exempt from proof of probable cause at the preliminary hearing.
“ ‘ “ ‘Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.' ”' ” (People v. Graff (2009) 170 Cal.App.4th 345, 364.) Consistent with this rule, Thiecke held that those misdemeanors which could be joined with felonies at that time were subject to dismissal if not supported by probable cause at the preliminary hearing. Applying its ruling to this case, we conclude that any misdemeanor joined to a felony must be supported by probable cause at the preliminary hearing or be dismissed. Since count 3 was not supported by any evidence at the preliminary hearing, we shall order its dismissal.
III
Sufficiency of the Evidence of Indecent Exposure
Defendant contends there is insufficient evidence to support his indecent exposure convictions. We disagree as to count 2 and decline to address count 3 in light of our ruling that the trial court should have granted the section 995 motion as to that count.
In a claim of insufficient evidence to support a verdict, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence-evidence that is “reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) We draw all available inferences supporting the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) “ ‘If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' ” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Section 314, subdivision (1) states in pertinent part: “[E]very person who willfully and lewdly [¶]... [¶] [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby, ” is guilty of indecent exposure. The crime is a misdemeanor unless the defendant has a prior conviction for the same crime or under section 288. (§ 314.)
“Generally, a conviction for indecent exposure requires proof of two elements: ‘(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present others to be offended or annoyed thereby.' [Citation.]” (People v. Carbajal (2003) 114 Cal.App.4th 978, 982.) “[A] person does not expose his private parts ‘lewdly' within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (In re Smith (1972) 7 Cal.3d 362, 366, fn. omitted.)
Defendant contends there is insufficient evidence of either element for both counts. As to the October 2014 incident in count 2, he claims there is no reason for him to believe he was being or could be observed because his cell was in the second tier, the cell window was six to eight inches wide and 36 inches high, and there was no evidence Rebecca was on the second tier or knocked on defendant's cell door. Noting that prison policy requires female employees to knock on a cell door prior to looking into the cell, he concludes there was no reason for him to know or have reason to know that someone was present to be offended.
Rebecca announced her presence when she entered the building. Although she was one tier lower than defendant, she made eye contact with him when he was masturbating, and testified that he was looking at her before they made eye contact. While, as defendant notes, prison policy required her to knock and announce herself before looking in the cell, a female staffer does not have to avert her eyes from a cell window before knocking and announcing her presence at the cell. A prisoner has a limited right to privacy, and this limited right does not include hiding what can be seen in plain sight through the cell window. Continuing to masturbate after making eye contact and continuing to do so after being told to stop, is sufficient evidence that he exposed himself in public for sexual gratification or arousal and did so in a public place knowing another nearby would be offended. Defendant's repeated statements after the incident that he could “beat my meat” to whomever he wanted further supports both elements of the offense.
Substantial evidence supports the conviction in count 2.
IV
Standby Counsel
Defendant claims the trial court either failed to exercise or abused its discretion by declining to appoint standby counsel.
A. Background
Defendant expressed his desire to represent himself at the January 5, 2015 arraignment. On January 12, 2015, he exercised a Faretta waiver and the trial court granted his request to represent himself. On April 23, 2015, defendant, citing “severe potential punishment and the complex nature of the upcoming preliminary hearings, ” requested the appointment of attorney Jeffrey Seaton as advisory counsel. The matter was docketed but it did not come to the trial court's attention at the time.
Faretta v. California (1975) 422 U.S. 806 .
On August 10, 2015, defendant withdrew his Faretta waiver and was appointed conflict public defender David Singer. Defendant subsequently filed a Marsden motion; the court denied the motion, relieved Singer, and appointed Seaton as defendant's counsel on November 16, 2015. On February 26, 2016, the trial court denied a second Marsden motion and granted defendant's request to reinstate his pro per status.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant filed a new motion for advisory counsel on March 9, 2018. He requested advisory counsel to discuss “confidential communications” with potential witnesses and to organize legal files “in preparation for trial and other legal matters.” The trial court denied the request, telling defendant, “there is no Constitutional right to advisory counsel. And you have not set forth any grounds that the Court believes would require it to appoint advisory counsel.” The court also told defendant he retained the right to appointed counsel and offered to appoint one for him. Defendant declined the offer.
B. Analysis
A defendant who elects to represent himself has no constitutional right to advisory counsel or any other form of hybrid representation. (People v. Moore (2011) 51 Cal.4th 1104, 1119.) The appointment of advisory counsel rests in the sound discretion of the trial court and will not be set aside absent a showing the ruling is arbitrary, capricious, or whimsical. (People v. Crandell (1988) 46 Cal.3d 833, 863; see also People v. Garcia (2000) 78 Cal.App.4th 1422, 1431 [reasoning that “if [a defendant] is not able to defend himself without the assistance of advisory counsel, then he is not competent to represent himself”].) “In ruling on such a request, the trial court may consider [a] defendant's demonstrated legal abilities and reasons for seeking the appointment of advisory counsel, including evidence of any manipulative purpose. [Citation.] Other factors include the seriousness of the charges, the complexity of the issues, and defendant's education and familiarity with the justice system. [Citations.]” (People v. Debouver (2016) 1 Cal.App.5th 972, 976.)
We reject defendant's claim that the trial court's statement defendant did not state grounds requiring the appointment of counsel reflected the erroneous belief that the court had no discretion to appoint advisory counsel. The trial court correctly understood defendant had no right to advisory counsel, and its statement simply reflected defendant failing to provide reasons to justify appointing advisory counsel.
We likewise reject the claim it was an abuse of discretion to deny the request. Defendant was found competent to represent himself, a finding he does not contest now. While the case presented a potentially significant three strikes sentence, it was not a particularly complex case, involving a single felony, two misdemeanor indecent exposure charges, and relatively few witnesses. Defendant, who was already serving a life term, had previous dealings with the criminal justice system and was able to file numerous motions before requesting advisory counsel with many of the motions granted. He was able to move for a continuance and appointment of a defense investigator. As previously discussed, defendant's motion to dismiss correctly sought dismissal of count 3 for lack of proof at the preliminary hearing; this motion was backed by points and authorities. Defendant also filed a request of discovery supported by points and authorities. Defendant's motions and requests, both written and in court, were supported by citations to relevant statutes and case law. Defendant was far from incapable of representing himself. While advisory counsel may have helped him, he was not entitled to it as of right and it was not an abuse of discretion to deny his request.
V
Excluding Defense Witnesses
Defendant claims it was an abuse of discretion and due process violation to exclude two defense witnesses, Walter Currie and Marcelino Clemente.
A. Relevant Proceedings
Defendant sought to produce several inmates as defense witnesses. At a February 16, 2018 ex parte hearing, the trial court informed defendant it would have no problem issuing an order to produce, “but I'm giving you heads up that the Court will probably be asking for offer of proof as to the relevancy of each one of those individuals before they testify. You are just asking that I grant an order to produce those individuals.” Asked for a quick synopsis of the witness's expected testimony, defendant said Clemente would testify about being assaulted by Officer Pogue, that the officer had a history of violence, and, like defendant, Clemente was charged with a crime after the incident with Officer Pogue. Currie would testify regarding allegations of dishonesty, excessive force, and harassment he experienced or witnessed. The trial court subsequently ordered the Department of Corrections and Rehabilitation to produce inmates, including Clemente and Currie, as witnesses for the jury trial on March 7, 2018.
At the March 9, 2018 hearing for setting a new trial date, defendant asked the trial court about motions to produce for Currie, Clemente, and another inmate. The court replied it received the declaration, but no subpoenas, and that it needed the subpoenas to be provided for it to sign. In a subsequent exchange with the trial court, defendant acknowledged that he would have to provide subpoenas with the new trial dates.
A discussion regarding defense witnesses took place just before opening statements on June 20, 2018. The prosecutor said it reviewed the statements of Currie, Clemente, and a third proposed witness, Gealmoa, and that all three would testify to allegations against Officer Pogue for false write-ups made by the officer against the inmates and regarding inmate grievances against him. The prosecutor argued that no relevant material was found by the trial court following Brady inquiries in 2015 and 2017 regarding the officers in this case. The prosecutor moved for an Evidence Code section 402 hearing to see if there was something more than bald allegations by the proposed witnesses against Officer Pogue. The trial court replied it would not press defendant on who he planned to call until after the prosecution's case-in-chief was complete, but it planned on having an inquiry or colloquy with defendant and an offer of proof before addressing the issue.
Brady v. Maryland (1963) 373 U.S. 83 .
The trial court told defendant it did not see an order to produce for any of the inmate witnesses. Defendant said his “understanding was that the order to produce was going to be sent to the warden for him to produce the inmates over here on this date.” When the court replied it wanted to get the trial moving and would address the issue later, defendant said, “And I will go back, if that's the case, if the Court erred, I will go back and look for that issue.”
On June 20, 2018, during the trial, the trial court told defendant he needed to be ready to proceed with his defense and he was responsible to provide subpoenas for his witnesses. Defendant replied that he misunderstood the earlier directive and had thought the order to produce sufficed. In the following discussion regarding the prospective testimony of the defense witnesses, defendant said Currie would testify about inmate complaints of excessive force against Officer Pogue, of allegations of the officer filing false violations against inmates, and Currie having seen Officer Pogue employ excessive force against inmates. The prosecutor argued that the testimony should be excluded because he was not given discovery regarding Currie's expected testimony, precluding effective cross-examination.
After the prosecution rested the following day, and after defendant told the trial court he would not testify, the trial court advised defendant there were no subpoenas or orders to produce for Currie. After defendant replied that in his experience an order to produce was sufficient to secure an inmate's testimony, he asked if he “can do anything legal to get my-my witnesses here, some kind of legal grounds I have. Because at this point it's a-it's a huge issue, because there is no defense.” When the trial court replied that defendant previously asked for Clemente, Currie, Smith, and Brown, defendant responded he could limit his witnesses to Currie and Clemente. The court said it would deal with those two witnesses at the end of the day or first thing the next morning.
The next morning, the trial court excluded Currie and Clemente because defendant failed to make a new request for subpoenas after the trial was continued, and as there was no evidence of excessive force so far, the testimony was irrelevant. Defendant said he was offering the witnesses for impeachment and they could be subpoenaed, as they were “just right down the street, possibly 20 minutes away from here.” The court replied that a lay opinion was inadmissible on another's veracity and that “[t]he Court does find there is no evidence of excessive force being used in this....”
B. Analysis
“A trial court's ruling to admit or exclude evidence... is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
Additionally, the United States Constitution gives a criminal defendant the right to present a defense. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citation], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.' [Citations.]” (Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 645].) A defendant “ ‘does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.' [Citation.]” (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [135 L.Ed.2d 361, 367].)
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence' means evidence, including evidence relevant to the credibility of a witness..., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence of a person's character or trait of character is generally inadmissible to prove that person's conduct (Evid. Code, § 1101, subd. (a)); however, as an exception, it may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (Id., subd. (b)). The trial court may exclude relevant, otherwise admissible evidence if it creates a substantial danger of prejudicing, confusing, or misleading the jury, or would consume an undue amount of time. (Evid. Code, § 352.) Although character evidence is generally inadmissible to prove conduct on a specific occasion (Evid. Code, § 1101), evidence of a character trait of the victim of the crime is not subject to this prohibition if offered by the defense “to prove conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).)
A case cited by defendant, People v. Castain (1981) 122 Cal.App.3d 138 (Castain), illustrates the relevance of prior use of force by an officer in a resisting arrest prosecution. The defendant in Castain was convicted of resisting arrest and battery on a police officer (§§ 242, 243) following an incident at a traffic stop (Castain, at pp. 140-141). The officer, San Diego Police Officer Robert Revak, saw baggies containing suspected narcotics in the front seat and in Castain's shirt pocket. (Id. at p. 141.) According to Officer Revak, when he reached into Castain's pocket and grabbed the baggies, Castain grabbed the baggies back and threw them on the floor. (Ibid.) When Castain refused an order to exit his car, Officer Revak pulled him out even though Castain resisted. (Ibid.) The officer tried to put Castain in a sleeper hold when Castain continued to resist, and a fight between the two eventually broke out, not ending until other officers arrived. (Ibid.) Castain testified that he did not grab the baggie from Officer Revak's hand, complied with the directive to get out of the car, was not resisting when the officer first choked and then assaulted him, only fought after he tripped and fell to the ground with the officer, and that Officer Revak threatened to kill him after the incident. (Id. at p. 141.) The only other witness to the incident was Castain's companion, who corroborated his story. (Ibid.)
Defendant sought to admit testimony from two witnesses regarding prior incidents of excessive force by Officer Revak. (Castain, supra, 122 Cal.App.3d at p. 142.) The trial court admitted the testimony of one witness but excluded under Evidence Code section 352 the testimony of the other, Murray, who would have testified that during a traffic stop for suspected driving under the influence, Officer Revak “ ‘grabbed him, choked him, pulled the hair out of his head, jammed him against the window several times, arrested all the occupants of the vehicle'; on the way to the police station, Revak exchanged taunts and threats with them, and someone spat at him; Revak stopped the car, pulled out the driver, ‘bashed him against the rear of the vehicle, struck him several times, pushed him down to the ground.' ” (Castain, at p. 142) The trial court excluded the evidence as minimally probative and leading to a potential minitrial on the prior incident. (Ibid.)
The Court of Appeal found “Murray's testimony, if heard and believed by the jury, would have been highly probative of the point it was offered to prove: Revak had a propensity to use excessive force against citizens he arrested or detained and, by inference, had acted ‘in character' in his confrontation with Castain. Moreover, the probative value of the offered evidence extends beyond its tendency to show Revak used excessive force on that particular occasion; it also tends to show a pattern of behavior reflecting a character trait of violence.” (Castain, supra, 122 Cal.App.3d at p. 143.) Given the substantial probative value and the slight delay involved with admitting the evidence, the Court of Appeal found the exclusion was an abuse of discretion that was prejudicial under the Watson standard. (Castain, at p. 144.)
There was evidence of force being employed against defendant. Officer Pogue testified to using his weight to push defendant against a wall and later to sweeping defendant's feet from under him and pulling him to the ground. Officer Hickman testified to filling out a use of force incident report for holding defendant's legs down after Officer Pogue pulled defendant down. Captain Roy wrote a report regarding defendant's excessive force claim and concluded the claim was unfounded. Under Castain and Evidence Code section 1030, evidence of prior uses of excessive force by Officer Pogue against other inmates can be relevant to show a propensity to use excessive force in encounters with inmates.
This case differs from Castain in key ways. Castain involved disputed facts. Officer Revak's testimony, if believed, established force was employed only in response to Castain's resistance, while the testimony of Castain and his companion, if believed, showed a series of assaults initiated by an officer who expressed an intent to kill Castain. Here, by contrast, the facts of what happened are largely undisputed, as defendant did not testify or present any eyewitness or video evidence disputing the direct account of the incidents given by Officers Pogue and Hickman. That account involved less violence than that employed by Officer Revak in his account, where he pulled Castain out of the vehicle and tried to use a chokehold to subdue him, and far less than the clearly excessive force in the defense version of events in Castain. While the proffered evidence in Castain involved a specific incident where the alleged excessive force was described, defendant's offer of proof here was much less specific, asserting, without more details, that Currie would testify to other inmates' claims of excessive force against Officer Pogue, Officer Pogue filing false reports, and the officer's use of excessive force against Currie.
The erroneous exclusion of defense evidence is analyzed for harmless error under the Watson standard. (People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104.) The relevance of the offered testimony is diminished because there is no competing version of events for the prior force testimony to support. Also, while the evidence here may be probative of Officer Pogue's propensity to be violent toward inmates, the excluded witnesses would give no testimony regarding the other participant in the incident, Officer Hickman, who participated in the use of force against defendant and whose version of events was essentially consistent with Officer Pogue's. Assuming it was error to exclude the evidence, it is not reasonably probable that admitting the evidence would lead to a more favorable verdict.
VI
New Trial Motion
Based on the allegedly erroneous exclusion of the testimony of Clemente and Currie, defendant claims it was an abuse of discretion for the trial court to deny his new trial motion.
While defendant's claim does not fall within one of the nine grounds enumerated in section 1181, that provision does not prevent a trial court from granting a new trial motion on other grounds involving the deprivation of a defendant's due process right to a fair trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) Whether to grant or deny a motion for a new trial rests completely within the trial court's discretion, and we will not disturb its decision unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Howard (2010) 51 Cal.4th 15, 42-43.)
Since defendant was not prejudiced by the denial of the proposed defense witnesses, it was within the court's discretion to deny the new trial motion.
VII
Reasonable Doubt Instruction on the Strike Allegations
At the bifurcated jury trial on the strike allegations, the trial court gave the following instruction on reasonable doubt: “The People have the burden of proving each allegation beyond a reasonable doubt. If the People do not meet that burden, you must find that the allegation has not been proved.”
The court admitted documentary evidence of defendant's priors. The jury returned true verdicts to all of the allegations after nine minutes of deliberation.
Defendant contends the instruction was reversible error and a due process violation because the instruction did not address the presumption of innocence and by failing to inform the jury how to determine whether the People have met its burden.
Defendant's argument is premised on the legally unsupported argument that bifurcation of the strike allegations from the substantive charges resulted in two separate trials. Not so. Bifurcation merely resulted in two separate phases of a single trial, one for the substantive offenses and a second phase for the strike allegations. Both phases involved the same defendant and the same jury. The strike phase of defendant's trial took place immediately after the jury returned its guilty verdict.
Defendant does not contest that the jury was adequately instructed on the presumption of innocence and proof beyond a reasonable doubt in the trial on the substantive charges, as the trial court gave the standard jury instruction on these subjects, CALCRIM No. 220. The well-established general principles that we do not consider instructions in isolation (People v. Holt (1997) 15 Cal.4th 619, 677), and determine the correctness and sufficiency of the jury instructions by assessing the entirety of the charge (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248), are applicable in the situation before us. When the instructions given in this case are considered in their entirety, we are convinced beyond a reasonable doubt the jurors would have understood that the presumption of innocence, the prosecutor's burden of proof beyond a reasonable doubt, and the definition of reasonable doubt applied to both phases of the trial.
Accordingly, we conclude the instruction was not error when read in light of all of the instructions given during the trial.
DISPOSITION
The indecent exposure conviction in count 3 is stricken. The conviction for violating section 69 in count 1 is reversed with directions as follows: If the People do not bring defendant to trial within 60 days after the filing of the remittitur in the trial court, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of misdemeanor resisting an officer (§ 148, subd. (a)) and resentence defendant accordingly. In all other respects, the judgment is affirmed.
We concur: DUARTE, J., RENNER, J.