Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA293581, Ruffo Espinosa, Jr., Judge.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Kuntakinte Howard appeals from the judgment entered upon his conviction by jury of assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1), count 1), three counts of making criminal threats (§ 422, counts 2, 7 & 10), stalking (§ 646.9, subd. (a), count 5), and burglary (§ 459, count 6). The jury also found to be true the special allegation that defendant had suffered two prior felony strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (a) through (i) and two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant as a three-strike offender to an aggregate state prison term of 160 years to life. Defendant contends that (1) there is insufficient evidence to support his burglary conviction, and (2) the trial court erred in advising the jury of proceedings conducted outside of its presence because defendant refused to be cross-examined.
Defendant was also known as Mario Howard, Kuntakinte Frank Howard, Michael Kinte Howard, Laron Hall, Malik Marcus Miles, Kunte Howard, and James Lamont Siordia.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach verdicts on counts 3, 4 and 8, for burglary, kidnapping, and assault by means likely to produce great bodily injury, respectively. The trial court declared a mistrial on those counts. The district attorney dismissed a criminal threat charge in count 9.
We affirm.
FACTUAL BACKGROUND
Charges related to Keisa T. (Counts 1 & 2)
We review the evidence in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66.) Keisa T. (Keisa) met defendant in October 2004, and they began dating around Thanksgiving. In mid-January 2005, she tried to end their relationship, after learning that defendant was married and dating other women. Defendant nonetheless continued to contact her, telephoning her every 20 minutes everyday, coming uninvited to her house and hiding inside, verbally abusing her, and meeting her on the street. Keisa reported defendant to the police two or three times. Although the police told defendant that Keisa wanted him to leave her alone, he did not.
On May 15, 2005, between 2:00 and 3:00 p.m., Keisa was at home. Defendant entered her residence through the back door, without her invitation or permission, and began staring at her. When she told him to leave and not to come to see her anymore, he became angry, pulled her hair, punched her more than 10 times in the face and threatened to kill her. He locked the door, got a knife, and came towards her. Frightened, Keisa ran screaming from the house. Defendant caught her and hit her with a large ring of keys, leaving only when a neighbor said that the police were coming.
As a result of defendant’s attack, Keisa was bleeding, suffered a black eye, cut lip and scratches and welts on her face. She was visibly upset and crying.
After the police had come and gone, Keisa packed some things and went to stay at various friends’ houses for the next five or six months. She frequently returned home to pick up clothes and check on her dogs. Defendant followed her, telephoned her daily, taunted her, and otherwise harassed her. His contacts continued until a month before his arrest.
Charges related to Ladine W. (Counts 5 & 10)
Ladine W. (Ladine) met defendant through her husband. In June 2005, after her husband died, defendant began visiting her to see how she was doing. Two months later, they began a sexual relationship. When she attempted to end the relationship, defendant continued to call her five to 10 times a day, calling her names, threatening to kill her and saying that it was not over until he said so.
On November 8, 2005, defendant followed Ladine while she and a male passenger were driving with her five children. Defendant yelled from his car, “Bitch, pull over,” and “Bitch I’m going to kill you.” Ladine drove to the police station and reported the incident. When she got home, a duffle bag containing extra keys to her house and important papers was missing. That evening, defendant telephoned her and said that he had climbed through her window and taken her bag and would not return it because she had gone to the police. Thereafter, he continued to telephone Ladine and warn her not to pursue charges against him.
On November 15, 2005, just after midnight, defendant went to Ladine’s house as she was leaving with another man. He was angry and questioned her about the man. When she refused to enter defendant’s car, he forcibly lifted her, put her in the passenger side and prevented her from leaving. Ladine was in defendant’s car for a couple of hours as they drove around until police telephoned her cell phone and told defendant to drop her off.
Defendant continued making 10 unwanted telephone calls and threats to Ladine daily until his arrest. On one occasion, he entered her home through a window, took the keys to her car and went outside and “messed up” the gas line so it would not start. Ladine believed that he telephoned social services, resulting in her children being taken from her.
Ladine was arrested on December 13, 2005, after she admitted to police that guns and drugs found in her car belonged to her.
Charges related to Patrice C. (Counts 6 & 7)
On August 31, 2005, defendant met Patrice C. (Patrice) and they began dating. Patrice lived with her three minor children. At approximately noon, on January 28, 2006, Patrice was at home with her infant child. She had not been taking defendant’s telephone calls because two days earlier, as a result of his “tantrum outbursts, [and] out of control anger,” she told him she was breaking up with him and that he was not to come to her house. Defendant was upset she was not taking his calls. Patrice was on the telephone with a male friend when she heard her older son’s bedroom window being opened. She knew that her son used the window to gain entry if the front door was locked. Other people, including defendant, knew how to enter through the window, and defendant had apparently done so before.
Patrice had been convicted of petty theft in 1997 and 1999.
Patrice testified as follows: “Q [Defendant] kept coming in the house? A Yes, he did. Q And either you or your son would let him in the house; Right? A Yes. Or he knew how to get in anyway. Q So you would be in the house and all of a sudden he’d be in the house? A He has before.”
After hearing the noise, defendant appeared in the hallway leading to her bedroom. He asked Patrice to whom she was speaking. When she told him, he said “I’m going to kill you.” He grabbed the telephone from her, hit her in the mouth with it and then hit her once in the head with his fist. Defendant then stomped on Patrice’s ankle with his work boots. When he threatened to kill her, she grabbed her infant and ran to a neighbor’s house. Defendant caught her on the neighbor’s porch and slapped her again. The neighbor let Patrice in, and defendant ran to his van and left. Patrice suffered injuries to her mouth and head and was bleeding “ferociously.” After this incident, defendant continued to call Patrice, leaving messages on her cell phone six or seven times a day until his arrest.
Defendant’s denials
Defendant testified on his own behalf that the charges against him were lies, resulting from “basically a lovers’ triangle.” He claimed that the three women testified against him because “they [were] jealous, and they [were] making false police reports.” Keisa’s injuries were inflicted in a fight with Ladine. Ladine had a drug problem and was angry at defendant for causing her to lose her children. At the time of the incident with Patrice, defendant was at home with his family. He denied entering Patrice’s home, hitting her with the telephone, threatening to kill anyone, ever having a “gun case” on his record, or forcing Ladine into his car. Defendant also testified that he had mental health problems, was on medication and had tried to kill himself the previous Friday. He said he was in the mental ward at the jail because of his “psyche.”
DISCUSSION
I. The evidence is sufficient to support the burglary conviction.
A. Defendant’s contention
Defendant contends that there is insufficient evidence to support his burglary conviction. He argues that there was insufficient evidence he entered Patrice’s residence with the intent to commit a felony. While he entered through a bedroom window, it was a window often used for entry, and he only became violent when he found Patrice on the telephone with another man. This contention is without merit.
B. Standard of Review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.) “The standard of review is the same in cases where the People, as here, rely primarily on circumstantial evidence.” (People v. Bloyd (1987) 43 Cal.3d 333, 346.)
C. Specific intent
In order to prove a defendant guilty of burglary, the prosecutor must establish that at the moment of entry into the residence there was the specific intent to commit a felony. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166; People v. Franklin (1957) 153 Cal.App.2d 795, 797.) Intent is rarely susceptible of direct proof in a burglary prosecution, and, hence, it must be inferred from all the facts and circumstances disclosed by the evidence. (People v. Franklin, supra, at pp. 797-798.) “[B]urglarious intent can reasonably be inferred from an unsuccessful entry alone,” when other facts so suggest. (People v. Martin (1969) 275 Cal.App.2d 334, 339.)
While this is a close case, we conclude that there was sufficient circumstantial evidence to support the jury’s guilty verdict on the burglary charge. The jury had evidence before it that defendant had a history of volatile and violent behavior and of harassing and physically abusing girlfriends, especially when they attempted to end their relationships with him. Evidence of defendant’s modus operandi can be relevant to establishing intent (People v. Matson (1974) 13 Cal.3d 35, 41-42) as can evidence that a person committed a crime, civil wrong or other act (see Evid. Code § 1101, subd. (b); see also People v. Martin, supra, 275 Cal.App.2d at p. 338).
Patrice had told defendant just two days before the charged incident that she was breaking up with him and wanted him to stay away from her home. On the day of the incident, she had not taken his calls, thereby upsetting him. Defendant came to Patrice’s house, uninvited, and entered through a bedroom window. While her son and others, including defendant, had apparently entered through the window in the past when the front door was locked, there was no evidence that this was defendant’s customary mode of entry, that the door was locked on the day of the incident or that he would, as a matter of course, enter the house in that fashion in the middle of the day, when Patrice was at home. A jury could reasonably infer from the evidence that the window was used when Patrice was not at home and there were no other means of entry. On the day of the incident, when he entered, defendant immediately approached Patrice and, after a brief question regarding who she was speaking to, beat her. The prosecution need only advance evidence from which a jury may reasonably infer entry with intent to commit a felony for the conviction to withstand reversal for failure of proof. (People v. Earl (1973) 29 Cal.App.3d, 894, 898, disapproved on the grounds in People v. Duran (1976) 16 Cal.3d 282, 292.) The jury could reasonably infer from the evidence that appellant was angry that Patrice was breaking up with him and became incensed when she refused to take his telephone calls. He came to her house intending to vent his violent temper by assaulting her.
II. The trial court did not commit prejudicial error in informing the jury of proceedings outside the jury’s presence.
A. Defendant’s conduct during trial
From the outset of trial, defendant engaged in outlandish behavior, twice causing his attorney to declare doubt under section 1368 as to his mental capacity to proceed to trial. Dr. Kaushal K. Sharma examined defendant pursuant to that section, and concluded that he was competent to stand trial and was “continuing to intentionally, volitionally, and consciously present himself as if he is mentally ill and incompetent . . . [and was] malingering mental illness and incompetency.” The trial court found defendant competent to stand trial.
When defendant’s attorney stated that he was not ready for trial because of a complex murder case he had just completed, defendant made a Marsden motion, which the trial court denied. Defendant then requested to self-represent, which the trial court granted, directing his defense counsel to act as standby counsel.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
When the jury panel was first called into the courtroom, the trial court asked the prosecutor and defendant to introduce themselves and read a list of their potential witnesses to the prospective jurors. Defendant said that he did not know how to read. As the trial court read the charges to the prospective jurors, defendant interrupted and stated, “She pleaded the fifth. She said she blew up my car.” The trial court then instructed the jury, “I am going to ask you to take the outbursts of this defendant and disregard them, and do not hold it against him.” Defendant repeatedly interrupted the trial court and stated four times, “I need to see a psyche.” After the trial court told the jury that there was standby counsel who was not representing defendant, defendant interjected several comments to the effect that he needed help, and that he didn’t “know what [he was] doing.”
Because of the uncertain meaning and pronunciation of the word “psyche,” we use and spell it throughout this opinion as it is used and spelled in the reporter’s transcript.
After the prospective jurors were sworn, defendant made an unrecorded outburst in front of the jury, which the trial court, outside the presence of the jury, described as follows: “He started yelling. This is the loudest I have ever heard a defendant yell in my courtroom actually . . . . I have never seen an outburst this disruptive before. He’s saying he’s going to take his life. He doesn’t want to be here. I don’t know if the court reporter was able to capture everything he said.” Defendant was removed from the courtroom.
The bailiff then returned to the courtroom and advised the trial court that defendant tried to commit suicide by putting his head in the toilette. Minutes later, defendant claimed that he could not breathe and his chest hurt. At this juncture, the trial court made a finding that defendant was willfully making himself absent from the courtroom and causing a disturbance. Defendant’s pro. per. status was revoked and standby counsel resumed his defense.
The next day, defendant was warned that he would be removed from the courtroom if he continued to be disruptive. He stated that he wanted to be present and would behave appropriately, which he did.
B. Defendant’s refusal to be cross-examined
After the People rested, defendant testified, as summarized in the statement of facts, ante. On cross-examination, he said that he had read the police reports, contradicting his earlier statement in front of the prospective jury that he could not read. Caught in this contradiction, he tried to explain, “I don’t really know how to read, but I can read something.” He then said, “This is all I want to say. . . . I’m not gonna say nothing.”
C. The trial court’s remedy
Out of the presence of the jury, the trial court told defendant that if he did not answer, it would strike his direct testimony. The prosecutor said that he did not want defendant’s testimony stricken. When the trial court said it was going to bring the jury out, defendant threatened: “I’m gonna act out. I’m gonna act out. I want you to get me out of here. I want you to get me out of here right now, sir.” He also requested repeatedly to “have a psche.” The bailiff removed defendant from the courtroom.
The prosecutor insisted that “the jury needs to know about [defendant’s statements outside of the jury’s presence]” and that those statements should be read to the jury. The trial court agreed. When the jury returned, the trial court told it: “Ladies and Gentlemen, this has been a very difficult situation, but we feel that you have the right -- first of all, Mr. Howard testified on direct, and frankly, I asked him leading questions in an effort to assist him to get his story out to you, but in connection with that, the People also have the right to cross-examine the witness, and if a witness refuses to testify, the court has various options. One of them is to strike the testimony of the defendant on direct, but I think that would not be the appropriate remedy in this case. I think the appropriate remedy in this case is for you to hear what transpired when you were not here. So I’m going to have the court reporter read back the proceedings and what was said by all the parties when you were in the jury deliberating room. I understand [defense counsel] has objected to this procedure. I just don’t know that -- this is a very unusual situation. Actually in the 14 years I’ve been on the bench, I’ve never really quite been faced with this situation, and I hope the appellate courts agree with me, if there is a verdict, that this procedure is correct.” The trial court then adjourned the proceeding until the next day to give the reporter time to transcribe the proceedings that occurred outside of the jury’s presence.
The next day, defendant did not want to enter the courtroom. The trial court told his counsel to inform him that if he did not, the jury would be so informed and the transcript of the proceedings out of the jury’s presence the previous day would be read to it. If he did come out, he had to subject himself to cross-examination. In the prisoner holding area, when defense counsel began telling defendant of the judges instructions, defendant began chanting, “‘I need to see a psyche’” at an increasing volume. Everyone in the courtroom, including the judge, could hear defendant yelling.
Defendant’s counsel objected to the trial court reading the transcript and requested that defendant’s testimony be stricken. But the trial court believed that reading the transcript to the jury was the “appropriate sanction” because “just striking his testimony [was not] going to have any deleterious effect.” Defense counsel then also objected on Evidence Code section 352 grounds. The trial court responded, “I think that yesterday he was very well behaved, and I think it’s very appropriate for the court to hear the comments where he says, ‘I’m going to start acting out again,’ because that shows that he’s conscientiously trying to deceive the jury and the court, and I think it’s highly probative to the issue of whether -- the jury at one time was very concerned over whether he was mentally balanced or not, whether he knew what was going on. During the jury selection process he acted up, and I think it’s very appropriate.”
When the jury was brought out, the trial court told it: “This has been a very unusual trial, and I don’t think I have to try to explain why. I think you all understand. Mr. Howard is refusing to come out today, and of course in this country and in our system of law, when a person testifies on direct, he is subject to be cross-examined. Cross-examination is a bulwark of our Constitution. It’s essential in order to elicit the truth and to have the system of justice that is fairly represented by all parties. So the trial is a quest for the truth, and that’s what we’re trying to get here. So I don’t know -- I have struggled with how best to address this problem in that [the prosecutor] would be deprived of his constitutional right to cross-examine [defendant]. I have proposed that I strike his testimony on direct and that you not consider it. On the other hand, [the prosecutor] and I agree that this would not serve any purpose. So I am going to allow the court reporter to read a copy of the transcript of what was said in your absence yesterday afternoon. I think the court reporter has prepared that transcript. . . .” The court reporter then read to the jury from the transcript of the previous day’s proceedings outside of the jury’s presence.
D. Defendant’s contention
Defendant contends that the trial court erred by informing the jury of the proceedings that occurred outside of its presence, as a penalty for his refusal to be cross-examined. He argues that this remedy was more severe than striking his testimony. The comments in those proceedings that sanctions would be imposed if defendant refused to be cross-examined, that defendant wanted to see a psyche and was going to “act out,” that he demanded to “get [him] out of here,” and that he engaged in a dispute with the bailiff, that appeared to include some physical force, were irrelevant and should not have been read to the jury. We conclude that irrespective of the propriety of the trial court’s actions, defendant was not prejudiced by them.
E. Harmless error
The right of cross-examination is fundamental to our system of justice. (People v. Abner (1962) 209 Cal.App.2d 484, 489.) It is an absolute right, not just a privilege. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.) A criminal defendant “‘has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’” (Brown v. United States (1958) 356 U.S. 148, 155.) When a defendant testifies on direct examination to facts favorable to his defense, the prosecution’s most effective weapon in the search for the truth is subjecting the defendant to the piercing eye of cross-examination. It is misleading to allow the jury to consider the direct examination without having been given the opportunity to hear its weaknesses.
Where a witness refuses to submit to cross-examination, the conventional remedy is to exclude the witness’s testimony on direct examination. (Fost v. Superior Court, supra, 80 Cal.App.4th at pp. 735-736.) Where the refusal regards a limited material issue, it is permissible to strike a part of direct testimony. (People v. Manchetti (1946) 29 Cal.2d 452, 461.) Striking a witness’s entire testimony is a “‘drastic solution,’ only to be employed ‘after less severe means are considered.’” (Fost v. Superior Court, supra, at p. 736.) Striking some or all of a defendant’s direct testimony is permissible even where it deprives a criminal defendant of the fundamental constitutional right to testify in his own behalf. (Ibid.)
We have serious doubts as to the need for, and propriety of, the remedy utilized by the trial court in this case. The prosecutor apparently felt that, on balance, defendant’s direct examination was beneficial to the prosecution’s case. The prosecutor therefore opposed the trial court’s stated intention of striking it. Having so assessed the situation, it is unclear why any additional remedy was necessary.
Further, the reading of the transcript of the proceedings that occurred outside the presence of the jury was tantamount to introducing impeachment evidence against defendant, without a stipulation as to its admissibility and without a witness, who could be cross-examined, to introduce it. Moreover, comments by the trial court arguably overemphasized to the jury the outrageousness of defendant’s conduct and indicated the trial court’s own displeasure with him. In short, deviation from the usual remedy of striking all or some of the direct examination should rarely be taken and must be effected in a measured and appropriate fashion. We further question the relevance of the material read to the jury and its admissibility under Evidence Code section 352. It is unclear, for example, what the relevance is of defendant’s requests for a “psyche.”
The trial court here apparently believed that its function was to punish defendant for his misbehavior, rather than to mitigate the prejudice to the prosecution in being unable to cross-examine defendant who had provided direct examination. In connection with its intended remedy, the trial court used terms such as “appropriate sanction,” (italics added) and stated that “just striking his testimony is [not] going to have any deleterious effect” (italics added).
Nonetheless, we need not resolve this thorny issue because we conclude that even if the trial court erred in reading to the jury the transcript of the proceedings held outside of its presence, the error was utterly harmless in that it is not reasonably probable that a different result would have ensued. (People v. Lara (1994) 30 Cal.App.4th 658, 676; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against defendant was strong. Three women testified to his recurrent pattern of conduct against each of them; their casual meeting, their progression to a dating relationship, his jealousy and outbursts of anger, to defendant’s numerous, unwanted telephone calls and other contacts, his uninvited entry into their homes, his threats and his physical attacks when the relationships were terminated.
Moreover, defendant had so sufficiently prejudiced his own case by his outrageous conduct in front of the jury that his comments that were read to the jury provided little, if any, additional negative impact. The jury had already heard him request a psyche and refer to his mental problems, his attempted suicide and his hospitalization. It had observed defendant’s outbursts and outlandish conduct first hand, which led the trial court to find that he was willfully absenting himself from the courtroom. Defendant had already “acted out” in front of the jury, making his statement that he would do so superfluous. When he was representing himself, he stated in front of the jury that he did not know what he was doing. The jury heard him yelling and screaming from outside the courtroom. The jury also saw that he was capable of proper and rationale behavior, suggesting that his fits of misbehavior were contrived. In short, defendant’s conduct was so outrageous that reading a transcript of similar behavior that occurred outside of the jury’s presence had little, if any, prejudicial effect.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.
Later during Patrice’s testimony the following question and answer were given. “Q Just so we’re clear, this was something he had done many times since the previous August when you met him; Right? Just showed up at your house; Right? A Not come through my window, No.”