Opinion
G056740
09-05-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIC STEPHEN LEWIS, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION, AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on September 5, 2019, be modified as follows:
1. On page 3, second complete paragraph, delete third complete sentence and replace with the following sentence:
John used his cellphone and recorded a short video, in which Lewis is heard yelling and cursing at John and Joe.
2. On page 5, first complete paragraph, delete first sentence and replace with the following sentence:
During a pretrial hearing, Lewis sought to exclude the short cellphone video taken by John.
This modification does not change the judgement. The petition for rehearing is DENIED.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF2320) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Eric Stephen Lewis drank alcohol and took hallucinogenic mushrooms with his 18-year-old son John Doe, and two of John's friends, Seth R. (16), and Joe L. (18). Lewis became belligerent and armed himself with a firearm. Lewis threatened to kill Seth, and he assaulted Seth and John. At a later trial, the court admitted a short cellphone video, in which Lewis is heard yelling and cursing that evening.
A jury found Lewis guilty of making criminal threats (Seth), assault with a firearm (Seth), and assault with force likely to produce great bodily injury (John). The jury found true two firearm enhancements. The court granted Lewis probation.
Lewis argues the court abused its discretion by admitting the cellphone video. (Evid. Code, § 352.) We disagree and affirm the judgment.
Further undesignated statutory references are to the Evidence Code.
I
FACTS AND PROCEDURAL BACKGROUND
On the evening of January 27, 2017, Lewis was at his construction warehouse in Anaheim. Lewis' warehouse contained a bar, a DJ booth, a dart board, a pool table, and a large desk. There were several recreational vehicles and trailers on the property. Lewis was 45 years old. Lewis was drinking and "hanging out" with his 18-year-old son John, as well as John's friends Seth (16) and Joe (18).
With the exception of Seth, the group consumed hallucinogenic mushrooms, which were retrieved from a desk drawer. At some point after 2:00 a.m., after a raucous evening that included fighting and arguing among the group members, Joe passed out on the couch, John retired to one of the trailers, and Lewis stepped out of the main warehouse.
Seth was alone in the shop and opened a desk drawer in order to take a picture of the remaining mushrooms (to send to his friends). Lewis walked in carrying a loaded .45 caliber semiautomatic handgun. Lewis was angry and came behind the desk. Lewis yelled at Seth and began hitting him with a closed fist. Lewis held the gun to Seth's head and said that he was going to kill him.
John heard the commotion and reentered the warehouse. John pushed Lewis against the wall and tried to gain control of the weapon. During the struggle, John told Seth to leave; Seth ran out of the building. Lewis threw the loaded handgun across the room. John was able to get to the weapon and unload it.
Lewis yelled at Joe, who was now awake on the couch. Joe told Lewis to calm down. Joe used his cellphone and recorded a short video, in which Lewis is heard yelling and cursing at Joe and John. Police eventually arrived at the scene after Lewis had left. Police later arrested Lewis during a traffic stop. Lewis' handgun was found in a bag in the front passenger floorboard.
There is some dispute among the parties as to whether the cellphone video also shows John unloading his father's handgun. But this fact is not relevant to our analysis. --------
In June 2018, at the end of an eight-day trial, a jury found Lewis guilty of making criminal threats (Seth), assault with a semi-automatic firearm (Seth), and assault with force likely to produce great bodily injury (John). The jury found true two firearm allegations. The court imposed and suspended a six-year prison sentence. The court granted Lewis probation with various conditions, including six-months of local custody.
II
DISCUSSION
The sole issue raised by Lewis on appeal is whether the trial court properly admitted the cellphone video. We review the court's evidentiary ruling for an abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 43.) An abuse of discretion occurs only when the court has acted in an arbitrary or capricious manner, or its decision exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920-921.)
1. General Legal Principles
"No evidence is admissible except relevant evidence." (§ 350.) "Except as otherwise provided by statute, all relevant evidence is admissible." (§ 351.) "'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." (§ 210.)
"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." (§ 352, italics added.) One of the purposes of section 352 is to exclude otherwise relevant evidence that "'uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" (People v. Robinson (2005) 37 Cal.4th 592, 632.)
Evidence is not prejudicial within the meaning of section 352 merely because the evidence is harmful to a party's interests. (People v. Megown (2018) 28 Cal.App.5th 157, 164.) Indeed, if the evidence is being proffered by the prosecution it is likely to be harmful to the defendant's interests, because such evidence is ordinarily probative of the defendant's guilt. Proffered prosecution evidence only creates "undue prejudice" if it tends to evoke an emotional bias within the jurors against the defendant, and the evidence has little effect on the issues. (Ibid.)
Once the relevance of evidence is established, a court may then weigh the quality and the strength of the evidence (its probative value) against the probability that the evidence will "necessitate undue consumption of time or . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
2. Relevant Proceedings
During a pretrial hearing, Lewis sought to exclude the short cellphone video taken by Joe as he was lying on the couch. The video showed Lewis yelling and cursing. Lewis conceded to the trial court that the video "has relevance," but he urged the court to exclude it because Joe was not a victim and therefore the video was "time consuming and really diverting the issues from the case." The trial court watched the video and read the accompanying transcript.
During the video, Lewis said to his son John, "I know you know what the f*ck is going on. I want to kick you in the goddam face. I got you on video again. Shut your f*cking mouth." John responded, "F*ck." Lewis said to John, "I'm not mad at you." John replied, "-- you f*cking hit me." Lewis also said to John, "I want to kick you in your f*cking ass and head."
During the video, John said to his friend Joe, "Joe, just relax." Joe told Lewis, "I've done nothing." Lewis responded, "You've done nothing? But ten minutes ago you were going to kick [John's] f*cking ass and he was going outside." Lewis continued, "You're a big, bad *ss. You expect me to go - - get the f*ck up. Get up." John advised Joe, "Don't get up." Lewis then said to Joe, "Get up. Let's go. Get up. You're a big, bad mother f*cker. You want to f*ck him for no reason. Get the f*ck up." At that point, the video ends.
The trial court said that although it had received briefs summarizing the facts, "I don't feel I really know the case thoroughly at this point. [¶] It seems to me maybe I should exclude [the video], without prejudice, because you are kind of assuming that the court has a full picture. It has not got the full picture." After hearing additional argument, the court said, "All right. I'm going to exclude it, but without prejudice."
At trial, the prosecution called John as witness. On direct examination, John said that he did not remember his father punching him. Out of the presence of the jury, the prosecution sought to introduce the video evidence for impeachment purposes. The court ruled, "Okay. I'm not allowing the contents of the video and the playing of the video, but [John's] statement, 'You just hit me,' is fair impeachment. I will allow that."
On cross-examination, John testified that he had consumed some of the mushrooms, which distorted his reality. When asked by Lewis' counsel, "You didn't really know what had gone on, what actually had happened that night, correct?" John responded, "Yes." The prosecution again sought to introduce the video. The court said, "I will allow the video. I think the door has been opened. We have him portraying -- being manipulative . . . . [¶] And there are prior inconsistent statements in there, and so on. [¶] That's the court's ruling."
3. Analysis
During John's trial testimony, it appeared as though he was trying to minimize his father's criminal conduct. Although John remembered much of what occurred on the evening of January 27, 2017, John said that he could not specifically remember whether Lewis had punched him or not. This was the basis of one of the two assault charges. Further, on cross-examination John said that because of the hallucinogenic mushrooms, his memory was unclear about the entire evening.
The cellphone video included a statement by John at the outset that Lewis had just hit him. Therefore, the evidence was probative because it tended to prove that Lewis had, in fact, committed an assault against John. The video evidence also tended to impeach John's credibility, particularly as to his statements regarding his memory loss, which also tended to minimize his father's criminal liability. (See § 210 [relevant evidence includes "evidence relevant to the credibility of a witness"].)
The cellphone video was also probative as to the criminal threats charge. (Pen. Code, § 422.) The court instructed the jury: "To prove that the defendant is guilty of [making criminal threats], the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill . . . Seth R.; [¶] 2. The defendant made the threat orally; [¶[] 3. The defendant intended that his statement be understood as a threat and intended that it be communicated to Seth R.; 4. The threat was so clear, immediate, unconditional, and specific that it communicated to Seth R. a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused Seth R. to be in sustained fear for his own safety; [¶] AND [¶] 6. Seth R.'s fear was reasonable under the circumstances." (CALCRIM No. 1300, italics added.)
The cellphone video was circumstantial evidence that Lewis was in a highly agitated state on the evening in question, right after he allegedly threatened Seth with a handgun. Therefore, it tended to prove Lewis' unlawful intent when he threatened Seth, as well as the reasonableness of Seth's fear. (See People v. Thomas (2011) 52 Cal.4th 336, 355 [intent is a subjective mental state that is rarely susceptible of direct proof; a person's mental state is almost always proven by circumstantial evidence].)
As far as the "unduly prejudicial" component of a section 352 analysis, all the video demonstrates is that Lewis was yelling and cursing that evening. That conduct was far less serious than the charged conduct, which included Lewis holding the gun to the head of a minor, and a physical assault against his own son. Hence, the video was not likely to evoke an emotional response by the jury given the remainder of the evidence. (See People v. Ho (2018) 26 Cal.App.5th 408, 416 [prejudicial evidence within the meaning of section 352 is evidence "which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].)
In short, the trial court weighed the relevant factors under section 352. Although the court's initial inclination was to exclude the proffered cellphone video, the court's analysis evolved during the course of the trial. This was after the court became more familiar with the facts of the case, particularly after John's testimony. The record discloses that the trial court did not reach its evidentiary decision in an arbitrary or capricious manner. Quite the opposite. The court's decision was reasoned and thoughtful. Thus, we find no abuse of the court's discretion.
Lewis argues that: "The court correctly concluded, twice, that the probative value of the video evidence was substantially outweighed by its possible prejudicial effects." Lewis maintains that: "The court then abused its discretion when it changed its mind and permitted the admission of the video itself to impeach Tyler's testimony." We disagree. We find that the evolution in the court's thinking was, in fact, an additional indication of its reasoned judgment, in light of the additional facts.
Lewis also argues—for a variety of reasons—that "the video had minimal probative value." But Lewis appears to somewhat misapprehend our role as an appellate court. When analyzing for an abuse of discretion, we do not substitute our judgment for that of the trial court. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 ["The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [T]he reviewing court has no authority to substitute its decision for that of the trial court"].) In sum, having found that the trial court made a judgment under section 352 that was not beyond the bounds of reason, we find no abuse of discretion.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.