Opinion
C071771
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS PARLANTE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F01341)
Early one morning, defendant John Thomas Parlante went to the house of former juvenile court referee Daniel Horton while carrying an ax. Horton had terminated defendant's parental rights in a juvenile dependency matter years earlier. After walking around the house, Parlante waited in his van for Horton to leave. When Horton's two children emerged from the house and got into a car parked in the driveway, Parlante sped towards them in his van, driving up on the curb, across the lawn and over the driveway, stopping mere feet away. A jury convicted defendant of stalking Horton and assaulting his children with a deadly weapon. (Pen. Code, §§ 646.9, subd. (a), 245, subd. (a)(1); unless otherwise set forth, section references that follow are to the Penal Code.) He was sentenced to four years eight months in prison.
On appeal, defendant asserts (1) insufficient evidence supports his assault with a deadly weapon convictions, (2) the court erroneously instructed the jury on both the assault and stalking charges, (3) the court failed to instruct on simple assault as a lesser included offense of assault with a deadly weapon, (4) the court erred in excluding certain experimental evidence concerning his vehicle's rate of speed and stopping ability, (5) the court improperly lowered the burden of proof on the stalking charge by failing to give a unanimity instruction, and (6) that the alleged errors were cumulatively prejudicial. Defendant also claims the court abused its discretion in denying his motion to review certain police personnel files under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the judgment.
FACTS AND PROCEEDINGS
In 2007, Daniel Horton was a juvenile court referee overseeing a child dependency matter involving defendant and his infant son. During court proceedings, defendant would become angry and yell at Horton, and, on occasion, defendant had to be escorted from the courtroom. At one hearing, defendant's teenaged stepdaughter was scheduled to testify on his behalf. When the hearing was canceled, his attorney requested a photograph of defendant's stepdaughter to give to Horton. Defendant, his counsel, and his stepdaughter posed for the picture together.
In January 2008, Horton terminated defendant's parental rights. Horton recalled defendant telling him at the hearing that he would "regret" the decision; Horton asked whether defendant was threatening him. The hearing transcript does not reflect the verbal exchange, however, and defendant denied ever making the statement.
Based on defendant's aggressive conduct during the dependency proceedings, Horton became concerned for his family's safety. He showed his family members pictures of defendant and his vehicles, and told them not to interact with defendant if they ever saw him. Horton also told his children that they could not play in the front yard.
Before his parental rights were terminated, defendant filed a civil lawsuit against Horton and another judge, which was eventually dismissed. Defendant had Horton served with the lawsuit at his home. While researching where Horton lived, defendant learned that Horton had a son named Francis.
Nearly four years later, in February 2012, defendant traveled to Sacramento from out of state to attend a hearing in a federal lawsuit his mother had filed concerning custody issues regarding his son. The hearing was scheduled for February 16, but unbeknownst to defendant, the judge had dismissed the matter and vacated the hearing three days earlier.
After going to the federal courthouse and learning that the February 16 hearing had been vacated, defendant returned to his motel. There, he saw a televised news report about Horton. According to the report, Horton had been arrested following a sting operation conducted by the Sacramento Police Department. Horton had allegedly approached two women, whom he believed to be minors, pretending to be an agent for a distributor of adult pornography and asked them to pose for photographs. Horton was charged with multiple sexual offenses to which he pleaded not guilty.
After seeing the report, defendant found a newspaper article detailing Horton's arrest. Defendant then formulated a plan to break into Horton's home to confiscate his computers and cameras because defendant believed they likely contained child pornography. Defendant also believed Horton had masturbated to the picture of his stepdaughter, taken several years earlier during the dependency action, and defendant wanted to confront Horton.
Around 8:00 p.m. on February 16, defendant purchased an ax at a Home Depot store located only miles from Horton's home. He intended to use the ax to gain entry to the house. Defendant also called his brother and asked him for directions to Horton's home, which was shown on the news reports.
Horton and his family were home on February 16. The home was located in a cul-de-sac. A bike path runs along the backside of the house.
Several media vans had been parked outside the house, and reporters had knocked on the front door seeking comment about Horton's arrest. After initially opening the door for one reporter and cameraman, L., Horton's teenage daughter, subsequently yelled through the closed front door that they were not making any statements. Later that night, there was a "very loud," "intense" knock at the door, which L. described as "angry" sounding. The knock sounded different from the earlier, "regular" knocks from the media.
Horton looked outside through an opaque window and saw a figure standing by the front door. He did not observe any lights from a camera. After L. called out that they were not making any statements, Horton saw the figure cross the yard and get into a vehicle, which pulled away rapidly. Although not positive, Horton believed it was defendant's van outside his house that night, and Horton also testified he saw the van earlier in the evening as well. Defendant, however, denied going to Horton's home that night.
Early the next morning, on February 17, defendant drove to Horton's house and parked his van on the street nearby. Defendant was unaware that the police had the home under surveillance at that time. Detective Darby Lannom was sitting in an unmarked car across the street watching Horton's home when defendant arrived.
Detective Lannom saw defendant get out of his van and walk towards the bike path surrounding the Horton home. From around the house, defendant could see inside the home. He watched to see if anyone was home, noticing a light on the second floor. Defendant returned to his van a short time later and grabbed the ax from the car. Although defendant denied it, Detective Lannom testified that defendant approached the front door of the home carrying the ax. According to defendant he never went to the front door, but was merely looking around the front of the house to confirm it was the same house he saw on the news the night before. He admitted carrying the ax without its protective cover.
Defendant returned to his vehicle, placed the ax in the passenger seat, got back in the driver's seat and waited. Defendant would periodically adjust the rear view mirror so he could see the house. He said he thought Horton would drive his car out of the garage at some point that morning, and he wanted to confront him.
A short time later, Horton's wife drove her car out of the garage and left for work. According to Detective Lannom, defendant made a U-turn in the cul-de-sac and followed her car. Even though he admitted watching the garage defendant denied ever seeing her car leave the garage or following her down the street. Horton, who had been watching defendant's van and the unmarked patrol car from inside the house, did not see defendant's van follow his wife. Defendant returned and parked his van in the same spot. He continued to wait and watch the Horton house.
Due to the media interest in Horton's arrest, Horton asked his adult son, Francis, to drive L. to school that morning. Francis and his sister left the home shortly after their mother. They came out the front door and got into Francis's truck parked in the driveway. Francis then got out of the truck and walked to several trash cans located near the sidewalk to throw away trash that was in the truck.
As Francis walked back to the truck and got in the driver seat, he heard screeching tires and looked up to see defendant's van speeding towards him. He believed defendant was going to collide with the driver's side door of his truck and braced for the impact. L. also heard the screeching tires and the van accelerating. Both Francis and L. were extremely frightened.
Horton heard the screeching tires from inside his home and watched the van speed towards his children. He immediately came outside and recognized defendant. He testified he was "petrified" and "scared to death."
According to defendant, he first saw Francis running near the trash cans and believed that he was Horton. Defendant made a quick U-turn in the cul-de-sac, which he said made his tires "chirp," and drove towards Francis's truck. He passed the trash cans, and drove over the curb and sidewalk, across the yard and driveway, and stopped the van one to three feet from Francis's truck. Defendant estimated that he was going around 17 miles per hour.
After stopping the van, defendant got out and went to the driver's side window of the truck. He yelled, "Are you Francis?" Defendant said he did not know what else to say once he realized Francis was not Horton. According to L. and Francis, defendant was "angry," "twisted," and "scary" when he approached the truck.
A few seconds later, Detective Lannom, who had been watching the events unfold, ran from his car and ordered defendant at gun point to the ground. Defendant complied, and he was handcuffed and arrested. While being detained, defendant yelled that Horton had pictures of his teenage daughter. A later search of defendant's van revealed, among other things, the ax, without its protective sheath, the news paper article about Horton's arrest, and numerous boxes of pleadings related to defendant's child dependency matter involving his son. The police showed Horton, Francis, and L. the ax found in the car, and all three were scared.
Detective Lannom testified that defendant started his van and hit the gas pedal really hard, which made the tires squeal when defendant made the U-turn in the cul-de-sac. Detective Lannom saw the van accelerate towards the truck, and based on his prior experience as a police officer observing vehicles going varying rates of speed, Detective Lannom estimated that the van was traveling between 20 and 25 miles per hour. Tire marks on the grass and driveway indicated that the van was pointed towards the truck.
Defendant was charged with two counts of stalking, relating to Horton and Francis, and two counts of assault with a deadly weapon, a van, relating to Francis and L. (§§ 646.9, subd. (a), 245, subd. (a)(1).) A jury convicted defendant of stalking Horton and assaulting Francis and L. with a deadly weapon, but acquitted him of stalking Francis. Defendant was sentenced to four years eight months in prison.
DISCUSSION
I
Sufficient Evidence Supports the Penal Code Section 245(a)(1) Convictions
Defendant contends he did not commit an assault with a deadly weapon within the meaning of section 245(a)(1) because there is insufficient evidence to show he "used" his vehicle in a manner likely to produce death or great bodily injury. In the absence of such evidence, he argues, his constitutional right of due process of law was violated.
When considering a sufficiency of the evidence challenge, we must " ' "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848 (Hill).) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371 (Massie).)
Section 245, subdivision (a)(1) prohibits a person from "commit[ting]an assault upon the person of another with a deadly weapon or instrument other than a firearm." (§ 245, subd. (a)(1).) For purposes of the statute, a " 'deadly weapon' " is " 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) Some objects are deemed deadly weapons as a matter of law. (Ibid. [examples of inherently deadly weapons include dirks or blackjacks].) Others, while not deadly per se, may be used in a manner likely to produce death or great bodily injury under certain circumstances. (Ibid.)
In this case, defendant argues that as a matter of law a vehicle is not an inherently deadly weapon so he could only be convicted of assault with a deadly weapon if the prosecution proved beyond a reasonable doubt that he "used" his van in a manner capable of causing and likely to cause death or great bodily injury. The evidence, as he characterizes it, was insufficient to satisfy this burden because it merely showed he drove his van 20 to 25 miles per hour up a curb, across a sidewalk, through a narrow area between trash cans and a tree, across the lawn and then stopped about three feet from the driver's side door of Francis's truck. He claims he drove "safely" and that it was "no different than stopping behind a car at a stop sign, which every driver does every day."
Even if we assume a car is not inherently deadly (see e.g., In re Jose R. (1982) 137 Cal.App.3d 269, 276, fn. 3 [referring to vehicles as being "not inherently dangerous"]), the evidence recounted above amply supports defendant's convictions for assault with a deadly weapon. This is because defendant's argument fundamentally misapprehends our limited role in reviewing sufficiency of the evidence challenges. We do not consider the evidence in the light most favorable to defendant as the above theory does, but in the light most favorable to the judgment. (Hill, supra, 17 Cal.4th at p. 848.) If there is any hypothesis supported by sufficient evidence, we are duty bound to uphold the conviction. (Massie, supra, 142 Cal.App.4th at p. 371.) As one court has noted, "[c]onvictions are seldom reversed based on insufficiency of the evidence." (People v. Pre (2004) 117 Cal.App.4th 413, 421.)
Our decision in People v. Golde (2008) 163 Cal.App.4th 101, 108-109 (Golde), is instructive. There, we found sufficient evidence supported the defendant's conviction for assault with a deadly weapon where the defendant drove his car at 15 miles per hour towards the victim. (Id. at p. 109.) Three witnesses testified to their observations about the defendant's driving. (Ibid.) One saw the car screeching its tires in acceleration toward the victim. (Ibid.) The other two testified defendant maneuvered the car to pursue the victim. (Ibid.) The defendant's arguments that he could have hit the victim but did not, and that he was maneuvering the car towards her to try to calm her down and coax her back into the car did not mandate reversal for insufficient evidence. (Id. at pp. 108-109.)
The evidence in this case is similar. Here, four witnesses observed defendant screeching his tires and accelerating towards Francis's truck. Detective Lannom estimated defendant's speed at 20 to 25 miles per hour, and defendant himself estimated his speed at about 17 miles per hour. Defendant purposefully drove the van between a tree and several trash cans, over the curb, across the front lawn, and over the driveway; tire marks left on the grass and driveway showed defendant was angling the van directly towards the driver's side door of the victim's truck. Defendant stopped his van mere feet before colliding with the truck.
That defendant claims he "safely" navigated the many obstacles and curb and stopped as if he were at a stop sign is not persuasive. "This is merely an argument for a different interpretation of the evidence, an argument which misperceives our standard of review." (Golde, supra, 163 Cal.App.4th at p. 109.)
Defendant's attempt to distinguish this case from others in which the evidence was deemed sufficient to support a finding that the defendant used a vehicle to commit assault with a deadly weapon is unavailing. (See People v. Aznavoleh (2013) 210 Cal.App.4th 1181, 1186-1187 [defendant deliberately ran a red light and collided with another vehicle he saw coming] (Aznavoleh); Golde, supra, 163 Cal.App.4th at pp. 106-107 [defendant accelerated car toward victim and pursued her as she tried to run away]; People v. Russell (2005) 129 Cal.App.4th 776, 779 [defendant pushed victim into path of oncoming car] (Russell); People v. Wright (2002) 100 Cal.App.4th 703, 705 [defendant drove his truck close to persons with whom he had contentious relations and intended to]; People v. Claborn (1964) 224 Cal.App.2d 38, 41 [defendant aimed vehicle at police officer and collided with his patrol car].)
In each of the above-cited cases, defendant argues, the evidence was found sufficient because it showed an actual collision between the defendant's car and the victim or the victim's vehicle, or that the victim had to escape a near collision. An actual collision or injury is not required for an assault with a deadly weapon conviction under section 245, subdivision (a)(1), however. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497.) As the jury was properly instructed, assault with a deadly weapon does not require proof of an injury or even physical contact. (Ibid.) And, the fact that the victims did not have to necessarily "escape" a collision because defendant stopped the van a few feet short does not mean the evidence was insufficient to establish the assault. Francis and L. were essentially trapped in the truck, and had no means of escape since the events occurred within a matter of seconds.
Construed in the light most favorable to the judgment, the evidence in this case shows that defendant, with tires screeching, deliberately accelerated his van to 20 or 25 miles per hour and aimed it directly at the victims while they were sitting helpless in their vehicle. He drove up the curb, across the lawn, and over the driveway, stopping mere feet from the driver's side door of Francis's truck. He was visibly angry when he emerged from the van to confront Francis, whom he mistakenly believed to be Horton.
Based on the evidence, the jury reasonably could have found that "an objectively reasonable person with knowledge of these facts would appreciate that an injurious collision, i.e., a battery, would directly and probably result from his actions." (Aznavoleh, supra, 210 Cal.App.4th at p. 1189; Golde, supra, 163 Cal.App.4th at p. 109 [evidence sufficient to show the defendant " 'willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery' "].) Substantial evidence thus supports the convictions on the assault with a deadly weapon charges.
II
Instructional Error
Defendant contends the court twice erred in instructing the jury. According to defendant, the court erroneously included inapplicable language when defining "deadly weapon" for the assault with a deadly weapon charges, and improperly excluded applicable language regarding "constitutionally protected activity" when defining "course of conduct" for the stalking charges. Given the record, we find that any error, if one occurred, was harmless.
A court has a duty to instruct on the general principles of law relevant to the issues raised by the evidence in a criminal case. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) That obligation includes instructing on all elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A necessary corollary to these well-established rules is that, to avoid confusing or misleading the jury, a court must not instruct on irrelevant principles of law. (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is well settled that a court errs when it gives "an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton ).)
A particular instruction " 'may not be judged in artificial isolation . . . .' " (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].) Instead, "[o]n review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) A party, moreover, " 'may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Jones (2013) 57 Cal.4th 899, 969.)
A. Definition of Deadly Weapon
The court instructed the jury with an assault with a deadly weapon instruction derived from CALCRIM No. 875 as follows: "The defendant is charged in Counts Three and Four with assault with a deadly weapon other than a firearm in violation of Penal Code section 245. To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person[.] [2] The defendant did that act willfully. [3] When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. [and] [4] When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person. . . . [¶] A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
Defendant's challenge to the above instruction focuses on the two-part definition of "deadly weapon." In passing, we note that CALCRIM No. 875 has since been amended to delete the phrase "or dangerous" from the definition of "deadly weapon." (CALCRIM No. 875, last revised Aug. 2013.)
Defendant claims the first component of the definition regarding "inherently deadly or dangerous" weapons should have been omitted. According to defendant, because a vehicle is not "inherently deadly or dangerous," the language does not apply. Thus, by including the challenged language in the instruction, the jury could have found his van was an inherently deadly or dangerous weapon and convicted him solely on that basis without ever considering how he used the car. This, he contends, violated his due process rights. And because the prosecutor urged the jury to find the van inherently dangerous, rather than focusing solely on the manner in which defendant drove the van, he argues his assault convictions were not surely unattributable to the allegedly erroneous instruction.
Before considering defendant's contention, we first address the People's argument that defendant waived his instructional challenge by failing to object below. It is undisputed that he did not object to the instruction as given.
"Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court." (People v. Franco (2009) 180 Cal.App.4th 713, 719.) We do not understand defendant to argue that the definition of "deadly weapon" was an incorrect statement of the law. Indeed, the Supreme Court has explained that section 245 contemplates both categories of deadly weapons: The first category includes objects that are "deadly weapons as a matter of law" such as dirks and blackjacks because "the ordinary use for which they are designed establishe[s] their character as such." (Aguilar, supra, 16 Cal.4th at p. 1029.) The second category includes "[o]ther objects, while not deadly per se, [that] may be used, under certain circumstances, in a manner likely to produce death or greatly bodily injury." (Ibid.)
But defendant does contend that the court should have deleted the reference to inherently deadly or dangerous weapons from the pattern jury instruction on what constitutes a "deadly weapon" because it was not responsive to the evidence since a vehicle, in his view, is not inherently deadly. Furthermore, we may review any instruction given, even though no objection was made below, if the substantial rights of the defendant were affected. (§ 1259.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.) We thus turn to defendant's claim of instructional error here.
Defendant contends reversal is required because the jury was instructed on a legally adequate theory--that defendant used the van in a manner likely to cause death or great bodily injury--and a legally inadequate theory--that the van was inherently deadly, but because the jury returned a general verdict, there is no way to determine which theory served as the verdict's basis. He cites People v. Green (1980) 27 Cal.3d 1 (Green) as compelling reversal under the circumstances.
In Green, the defendant was convicted of multiple offenses, including kidnapping. (Green, supra, 27 Cal.3d at p. 11.) The defendant's friend lured the victim, the defendant's estranged wife, by false pretenses into a car and then drove her to a nearby house where her husband was waiting. (Id. at pp. 62-63.) The two men then drove with the victim nearly 20 miles to a secluded area. (Ibid.) During the ride, she tried to crawl in the back seat, perhaps as an attempt to flee. (Id. at p. 63.) Upon arriving at a river, her husband ordered her from the car and then forced her to walk nearly 90 feet from the vehicle where he shot and killed her. (Id. at pp. 63, 65.)
Given this evidence, the Green court found three distinct segments of asportation of the victim upon which the jury could have based its kidnapping verdict. (Green, supra, 27 Cal.3d at pp. 62-63.) The jury was improperly instructed that the initial segment, when the friend picked her up and took her to her husband, was not voluntary because she was induced by fraud to get in the car. (Id. at p. 64.) In California, asportation by fraud alone does not constitute a general kidnapping offense. (Ibid.) The court also found that the third segment, forcing the victim to walk 90 feet from the car, was insufficient as a matter of law to satisfy the asportation element for kidnapping. (Id. at p. 67.) Thus, only the second segment--driving the victim nearly 20 miles--could establish the kidnapping. (Ibid.) Because the court could not determine upon which segment or segments the jury relied upon in finding defendant guilty, the court reversed the conviction. (Id. at pp. 67, 74.)
In doing so, the court announced the following general rule: "[W]hen the prosecution presents its case to the jury on alternative theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (Green, supra, 27 Cal.3d at p. 69.) The Green court held this general rule required reversal of a conviction when the alternate theory is either legally erroneous--for example, based on inadmissible evidence or an improper instruction (id. at pp. 69-70)--or "when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground." (Id. at p. 70.)
Notwithstanding Green, in People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton), the California Supreme Court affirmed the defendant's conviction for selling or transporting cocaine when there was insufficient evidence to show he sold the drug, but sufficient evidence to show he transported it. (Guiton, supra, 4 Cal.4th at pp. 1119, 1131.) The court considered Green in light of the United States Supreme Court's later decision in Griffin v. United States (1991) 502 U.S. 46 (Griffin), where the Supreme Court affirmed a conspiracy conviction when the evidence was sufficient to implicate the defendant in one object of the conspiracy but not the other.
In declining to apply Green to set aside the defendant's drug conviction, the Guiton court found persuasive a distinction recognized in Griffin between legal error or a mistake of law, on the one hand, which is subject to the rule generally requiring reversal, and insufficiency of proof or mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists. (Guiton, supra, 4 Cal.4th at p. 1125; Griffin, supra, 502 U.S. at p. 59.) Harmonizing both Green and Griffin, the Guiton court concluded that "[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Guiton, supra, 4 Cal.4th at p. 1129.)
The Supreme Court also cautioned, however, that neither reversal under Green nor affirmance under Griffin are always appropriate. (Guiton, supra, 4 Cal.4th at p. 1129.) Instead, the general rules apply "in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule[s] should not be followed." (Ibid.)
" 'If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary [with respect to the element of the crime at issue], the erroneous . . . instruction [on that element] was harmless.' " (People v. Brown (2012) 210 Cal.App.4th 1, 12 (Brown).) In Brown, for example, although the court concluded CALCRIM No. 875's definition of "deadly weapon" was ambiguous at best, and overboard at worst because it referred to inherently dangerous rather than merely inherently deadly weapons (id. at pp. 4, 8-9), it nevertheless found the instructional error was harmless beyond a reasonable doubt given the ample evidence at trial that the defendant used a BB gun in a manner capable of inflicting great bodily injury. (Id. at p. 13.)
Like in Brown, we agree that even assuming this case is generally governed by Green and not Guiton and Griffin like defendant contends, any error in instructing the jury on the complete definition of deadly weapon using CALCRIM No. 875, including the reference to inherently deadly and dangerous weapons, was not prejudicial. While the Guiton court did not decide the exact standard of review in cases governed by Green (Guiton, supra, 4 Cal.4th at p. 1130) we find the alleged error harmless beyond a reasonable doubt. (See People v. Harris (1994) 9 Cal.4th 407, 424 [harmless error test traditionally applied to misinstruction on the elements of an offense is "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,' "] quoting Chapman v. California (1967) 386 U.S. 18, 24, 17 L.Ed.2d 705.) " 'To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (Harris, at p. 440.)
Defendant does not dispute that a vehicle can constitute a deadly weapon if it is used in such a way that it is capable of causing and likely to cause death or great bodily injury. (Russell, supra, 129 Cal.App.4th at p. 785 ["An automobile weighing several thousand pounds and underway on a street is capable of seriously injuring and often killing any person it strikes"].) Given the evidence presented at trial and the arguments of counsel, we can only conclude that even if the court had omitted the reference to inherently deadly or dangerous weapons, defendant would have been convicted. (Guiton, supra, 4 Cal.4th at p. 1130 ["In determining whether there was prejudice, the entire record should be examined, including the facts and instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict"].)
The overwhelming evidence presented showed defendant used his van in a manner likely to cause great bodily injury or even death. Detective Lannom, Francis, L., and Horton all testified that defendant screeched his tires while accelerating his van directly at the truck. He purposefully drove the van over the curb, between a tree and several trash cans, across the sidewalk, over the lawn and driveway, stopping just short of the truck. Two different witnesses, one of which included defendant, estimated the speed somewhere between 17 and 25 miles per hour.
Francis and L. both testified that they were terrified and extremely upset because they believed defendant was going to crash into their vehicle. Francis testified that he braced himself for impact. The fact that defendant stopped his van just short of hitting Francis and L. does not mean they were not injured in some sense. (See e.g., Golde, supra, 163 Cal.App.4th at p. 122 [a "violent injury" for the crime of assault "is not synonymous with bodily harm, but includes any wrongful act by means of physical force, even though only the feelings of such person are injured"].) And, in any event, physical injury is not required for a conviction under section 245, subdivision (a)(1). (Id. at p. 123 ["actual causation of injury (physical or emotional) is not a required element for assault"].)
In light of this evidence, we are left with no doubt that the jury found defendant used his van in a manner capable of causing and likely to cause death or great bodily injury. Indeed, we are convinced beyond a reasonable doubt that the verdict would have been the same even if the court had instructed the jury as defendant requests.
We are not persuaded, moreover, that the prosecutor's closing argument focused solely on having the jury find the van inherently deadly or dangerous rather than on considering how defendant actually used the van. While it is true the prosecutor argued the van was inherently dangerous, he also repeatedly emphasized the manner in which defendant drove the van.
He began by saying, "let's talk about [defendant's] actions." He then argued that, "[defendant] drove recklessly at Francis Horton and [L.] and he had the present ability to apply force." He emphasized the evidence showing how defendant drove and the path which he took. "He drove his car across the sidewalk, across the lawn, across the driveway . . . . And he said that this was the safest thing[] to do. Does that make any sense? He could have driven his car into the driveway. Multi-car driveway. He could have parked right next to the truck. If he wants to block, he could pull his van right behind the truck. But he didn't do that. He's driving his van in a reckless manner directly at Francis and [L.] and that's the actions that we're talking about." The prosecutor then noted that defendant was driving fast enough to leave tire marks angled towards the victims.
The prosecutor, moreover, also argued: "Now the court does also give a second definition that is used in such a way that's capable of causing and likely to cause death or great bodily injury. One of the reasons why we have these instructions is almost anything can be used as a weapon. A steak could be a deadly weapon if you pull it out of the freezer and smack someone in the head with it. That's what this second portion of the instruction is for. Objects you don't normally think of as a deadly or dangerous weapon when they're used in that way. But we know that a van is already deadly and dangerous and certainly the manner in which he used it. It qualifies on both counts. Not just one." (Italics added.)
Thus, the prosecutor did not simply rely only on an allegedly invalid theory. (Guiton, supra, 4 Cal.4th at p. 1130.) Instead, his arguments to the jury focused on both deadly weapon theories, and in particular, he stressed the manner in which defendant actually used the van.
Defense counsel too argued that the van was not inherently dangerous. She explicitly told the jury: "Now, I disagree with [the prosecutor] on the issue of whether or not you can simply stop at the first part [of the deadly weapon definition] and say that a van is an inherently dangerous object. I would submit to you that you definitely have to get to that next step. And the reason why is sometimes a van is just a van. Okay." (Italics added.)
She continued, "Is a van inherently dangerous? Well, what about a parked van? . . . But, when looking at the law and whether something is a dangerous or deadly weapon there are only two ways the prosecution can prove that. One by saying it is inherently dangerous just on its own the object itself is so dangerous that it is always a deadly weapon. Or, that it is used in a way that is capable and likely to cause great bodily injury or death. So a parked van is not inherently dangerous. It's not going to cause bodily injury or death to someone while it's sitting there parked.
"A van that's being driven in a normal, prudent fashion. Is that inherently dangerous? No. Is it possible that it could cause injury to someone? Sure. But it is not inherently dangerous in the way that it is likely to cause great bodily injury or death. And, frankly, under the prosecution theory that it is an inherently dangerous weapon, we're all committing this crime on a daily basis . . . any time you get in a car, if we're going to consider a car an inherently dangerous object, every single time you get in a car and drive you are capable of applying physical force to another person, to a pedestrian, to another car, under doing a willful act in that you're driving. So, under [the prosecution theory], the second you guys leave the courthouse tonight you're committing an assault with a deadly weapon if you're driving the car down the street because you're doing a willful act with a deadly weapon that could potentially hurt someone. That's not what this law is meant for." She emphasized that while a car could be a deadly weapon, "it depend[ed] on how it is used."
Although defendant asserts the prosecution "easily" countered this argument, we find defense counsel's argument compelling, especially since it is likely every member of the jury had experience with a vehicle, either as a driver or a passenger and were well aware of its intended uses.
Defense counsel also focused the jury's attention on how defendant actually drove the van. According to counsel, "[defendant] drove his van at a slow speed over the grass, over the curb and stopped it short of hitting the Tacoma. . . . Now, what may be perhaps disputed, I'm not sure, is this issue of a slow speed. I know [the prosecutor] talked a lot about the reckless way that he was driving the car, how it was--he was out of control, how he didn't have control over it, how this was a highly dangerous situation. Well, I never heard any evidence that he was not in control of the vehicle. Not once." She went on to argue that looking at the maps admitted as trial exhibits, it appeared defendant had only traveled a distance of 50 or 60 feet, and that it would take more time and distance to accelerate the van to a high speed.
Given the great weight of the evidence and testimony focusing on how defendant actually used the van, the arguments of both counsel, and because the district attorney did not simply stress only an allegedly invalid theory (Guiton, supra, 4 Cal.4th at p. 1130), any error in not omitting the language concerning "inherently deadly or dangerous" weapons when defining "deadly weapon" was harmless beyond a reasonable doubt.
B. Constitutionally Protected Activity
Defendant's challenge to the stalking instruction is the opposite of his challenge to the definition of deadly weapon. He claims the instruction as given erroneously omits an applicable principle of law.
To commit the offense of stalking, a defendant must "willfully, maliciously, and repeatedly [follow] or willfully and maliciously [harass] another person and . . . [make] a credible threat with the intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family." (§ 646.9, subd. (a); People v. Ewing (1999) 76 Cal.App.4th 199, 210 (Ewing).) The term "harass" is statutorily defined as a "course of conduct" that "seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." (§ 646.9, subd. (e).) A "credible threat" is a threat "made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family" (§ 649, subd. (g).) Section 646.9 provides that "[c]onstitutionally protected activity" is not included in the statutory definitions of either " 'course of conduct' " or " 'credible threat.' " (§ 646.9, subds. (f) & (g).)
Based on CALCRIM No. 1301, the court instructed the jury on the stalking charges as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant willfully and maliciously harassed, or willfully and maliciously and repeatedly followed another person. [and] [2] The defendant made a credible threat with the intent to place the other person in reasonable fear for his safety or for the safety of his immediate family.
"A credible threat is one that causes the target of the threat to reasonably fear for his or her safety or for the safety of his or her immediate family and one that the maker of the threat appears to be able to carry out. A credible threat may be made orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct.
"Harassing . . . means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose. A course of conduct means two or more acts occurring over a period of time, however, short, demonstrating a continuous purpose. . . . Repeatedly means more than once. . . ."
CALCRIM No. 1301 contains an optional bracketed provision regarding constitutionally protected activity that provides, "[a] person is not guilty of stalking if (his/her) conduct is constitutionally protected activity." (CALCRIM No. 1301, revised Apr. 2010.) The bench notes direct the court to give the optional language if there is substantial evidence that any of the defendant's conduct was constitutionally protected, and directs the court to instruct on the type of constitutionally protected activity involved, such as speech, protest, and assembly. (Ibid.) Neither defendant nor the People requested the optional bracketed provision regarding constitutionally protected activity, and the court did not give that portion of the instruction.
Defendant now contends the court erred in failing to instruct the jury that the lawsuit he filed in 2008 against Horton was constitutionally protected activity that the jury could not consider as being part of a course of conduct to prove the stalking charges. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 ["The filing of lawsuits is an aspect of the First Amendment right of petition"].) According to defendant, the prosecutor stressed that the lawsuit was a critical part of the harassing conduct against Horton, and he relied on the lawsuit to link defendant's hostile conduct during the dependency proceedings in 2008 to the events in February 2012. Had the jury been unable to consider the lawsuit, which he characterizes as the "only uncontested evidence of harassment," he believes it is unlikely they would have convicted him of stalking.
Even if we assume the court erred in failing to instruct the jury regarding constitutionally protected activity, we find the error harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 ["a trial court's failure to instruct on an element of a crime is federal constitutional error [citation] that requires reversal of the conviction unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict"].) This is because a review of the record amply shows defendant engaged in a harassing course of conduct even if we disregard his conduct of filing the lawsuit against Horton.
At the outset, the record belies defendant's contention that the lawsuit was the "only uncontested evidence of harassment." Defendant himself testified that he saw the article about Horton's arrest on February 16. He admitted he called his brother that night asking for directions to Horton's home. He then drove 14 miles to a Home Depot store, which was very close to Horton's home, and bought an ax. Defendant admitted he had been angry with Horton, and wanted to confront him.
While defendant denied going to the home on February 16, other direct and circumstantial evidence establishes otherwise. For example, Horton testified that he saw defendant's van parked outside his home on February 16. Both Horton and L. testified that late that night, they heard a loud, angry-sounding knock on the door. Horton looked through an opaque window and saw a figure standing by the front door. The person was not accompanied by anyone holding a camera, such as someone associated with the media might be. He saw the person walk across the lawn and back to a car parked where Horton testified he saw defendant's van earlier in the day. While Horton could not be sure it was defendant, a jury could reasonably infer defendant's presence at the home that evening, especially since defendant admitted to being in the area and getting directions to his home.
Defendant admitted he went to Horton's home the next morning on February 17. After parking the van near the house, defendant said he grabbed the ax and even removed the weapon's protective sheath. Defendant then admitted that he walked up to the house and looked around the back to see if he could find a way inside. He was also looking to see if anyone was home. After returning to his car, he sat and waited for Horton to emerge because he wanted to confront him and he knew Horton would be fearful if he saw him.
Although defendant denied following Horton's wife when she drove out of the garage, Detective Lannom testified that defendant followed her car in his van. In any event, defendant admitted that when Francis and L. eventually emerged from the home, he turned his car around, "chirping" or "screeching" his tires in the process. He admittedly aimed the vehicle directly at them. He sped towards them going at least 17 miles per hour by his own estimate and perhaps even as high as 25 miles per hour, if Detective Lannom's testimony is believed. Rather than calmly pulling his van next to the truck, or even parking it on the street, defendant drove over the curb and sidewalk, over the grass, diagonally across the driveway, and stopped mere feet from Francis's driver's side door. Defendant emerged from his van enraged, and angrily asked Francis who he was.
Defendant's conduct so terrified Francis and L. that they believed they were about to be hit by his van. Detective Lannom, who witnessed the events, also believed defendant was going to ram Francis's truck. He got out of his car, and pulled his gun to order defendant to the ground. Horton, who had heard defendant's tires screeching and saw defendant drive towards his children, came running out of the house and immediately recognized defendant. He was "petrified, and "scared to death." Police later told him that defendant has been walking around his house carrying an unsheathed ax, which made him very upset. (See People v. Norman (1999) 75 Cal.App.4th 1234, 1240 ["What matters is that, when [the victim] did learn of [the defendant]'s acts and threats, [the victim] suffered the requisite fear for his own safety and the safety of his family"].)
This evidence, much of which defendant admitted himself, amply establishes that on February 17 alone defendant engaged in a course of conduct, meaning two or more acts over a period of time, however short, that seriously annoyed, alarmed, tormented, or terrorized his victim without any legitimate purpose. (§ 646.9, subd. (e).) Walking around the residence with an unsheathed ax and peering into the house would seriously alarm and annoy any reasonable person, and the conduct clearly served no legitimate purpose as defendant testified he intended to use the ax to break into the home. Furthermore, defendant's conduct of purposefully maneuvering his van directly towards Horton's unsuspecting children, stopping just short of a collision, would likewise seriously alarm and annoy--even terrify--any reasonable person, and especially a father watching the events unfold from the window of his home. Again, such actions served no legitimate purpose.
Thus, even without considering the evidence that defendant had filed a federal lawsuit against Horton, we are convinced beyond a reasonable doubt that the jury would have convicted defendant of stalking. Any error in not giving the optional language concerning constitutionally protected activity, then, was not prejudicial.
III
Lesser Included Offense of Simple Assault
Defendant contends the court has a sua sponte duty to instruct the jury on simple assault (§ 240) as a lesser included offense of assault with a deadly weapon. (§ 245, subd. (a)(1).) We disagree, finding a lack of substantial evidentiary support for the theory. The trial court did not have a sua sponte duty to instruct the jury on simple assault.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (Breverman, supra, 19 Cal.4th at p. 154.)
This instructional requirement includes the duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. (Breverman, supra, 19 Cal.4th at p. 157; People v. Rogers (2006) 39 Cal.4th 826, 866 [if evidence is presented that, " 'if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser[,]' " court has obligation to instruct on the lesser offense].) The duty exists even when the lesser included offense is inconsistent with the defendant's own theory of the case and the defendant objects to the instruction. (Breverman, at pp. 154, 157.)
This rule "seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Breverman, supra, 19 Cal.4th at p. 155.) "Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense." (Ibid.)
In deciding whether there is substantial evidence to support a lesser included offense instruction, a court determines only the bare legal sufficiency of the evidence, not its weight. (Breverman, supra, 19 Cal.4th at p. 177.) In doing so, courts "should not evaluate the credibility of witnesses," which is a task for the jury. (Id. at p. 162.) We review the trial court's failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the defendant. (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
A court need not instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, or when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged. (See e.g., People v. Ortiz (2012) 208 Cal.App.4th 1354, 1368 [court did not err by not instructing on simple kidnapping as a lesser included offense of kidnapping during a carjacking because there was no doubt that evidence showed the kidnappings occurred during a carjacking]; People v. Medina (2007) 41 Cal.4th 685, 700 [finding "there was no substantial evidence that the offense committed was less than that charged. As the Court of Appeal majority concluded: 'If the jury found that [defendant] intended to kidnap the Perez family, it must have also found that he intended to carjack, as he was running from the police and jumped into the van and attempted to start it, knowing the Perez family was inside' "].)
In Golde, we found that the defendant was not entitled to an instruction on simple assault as a lesser included offense of assault with a deadly weapon or force likely to cause great bodily injury where he drove his car at the victim, maneuvering the vehicle in her direction when she tried to get out of the way. (Golde, supra, 163 Cal.App.4th at p. 117.) We concluded that "[t]here is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (Ibid.) Because the evidence did not support simple assault, we found the trial court did not err in failing to instruct on simple assault as a lesser included offense. (Ibid.)
The same is true here. The undisputed evidence showed defendant drove his van 17 to 25 miles per hour directly at the victims, maneuvering over and through several obstacles to get to them. He stopped only feet from the driver's side door of their car. It is not hard to imagine that a person sitting helpless in a parked truck could be seriously injured if hit by another vehicle traveling at these speeds. Like in Golde, there is no way that such conduct constitutes simple assault but not assault with a deadly weapon.
We also find unpersuasive defendant's attempt to distinguish Golde on the grounds that he did not maneuver his van towards a pedestrian but rather directed it towards people protected by the steel frame of another vehicle. Simply because the victim has limited protection inside another car does not mean that an automobile purposefully driven directly at the car between 17 and 25 miles per hour is not being used as a deadly weapon or could not potentially result in grave injury.
The court thus had no sua sponte duty to give a simple assault instruction. Because we have found no error, we need not address the parties' arguments regarding prejudice. (Golde, supra, 163 Cal.App.4th at p. 117 [court did not address parties' arguments as to whether the claimed error was prejudicial].)
IV
Exclusion of Experimental Evidence
Defendant contends the court abused its discretion by excluding proposed testimony from his stepdaughter about an experiment she conducted concerning the distance it took his van to accelerate to a specific speed and then abruptly stop. Defendant wanted to present her testimony to show that he was not driving as fast as Detective Lannom estimated. Erroneously excluding such evidence, he argues, deprived him of his right to present a defense and to compulsory process guaranteed by the federal constitution. The trial court did not abuse its discretion.
During an Evidence Code section 402 hearing outside the jury's presence, defendant's 21-year-old stepdaughter admitted she had only been driving for approximately two years. She testified that her mother asked her to drive defendant's van to conduct an experiment to determine various braking distances when the van was driven at 15, 20, and 30 miles per hour, respectively. She conceded she drove the van on a flat street and that she did not drive over any obstacles such as curbs, lawns, or driveways. She described stepping hard on the gas pedal until reaching the desired speed and then stepping on the brakes "pretty hard" until the van came to a stop. She agreed she did not slam on the brakes, but rather did so in a safe manner so she would not be in danger when stopping. She then measured the distance between where the van started and where it ended using a measuring wheel.
Before testifying further, the trial court ruled that her proposed testimony was inadmissible. The court found the testimony "at best misleading and not relevant." Not only did she not know the precise rate of acceleration employed or the pressure used to stop, but also the experiment was done under controlled circumstances that did not reflect the conditions under which defendant drove his van on the day in question. And she did not qualify as an expert in conducting such experiments.
Following his conviction, defendant moved for a new trial arguing that the court had erred in excluding his stepdaughter's proposed testimony. At the hearing, defense counsel made the following additional offer of proof: "she would have testified that in addition to the facts she testified to regarding how she drove the vehicle and measured the distances, that it took 32.08 feet to go 0 miles per hour to 15 miles per hour and back to a stop; 114.01 feet to go from a stop to 30 miles per hour and back to a stop; and 71.07 feet to go from stopping to 20 miles per hour to a stop." Counsel, however, could not articulate how much slower defendant was purportedly traveling based on the experiment. In denying the motion, the court again reiterated that defendant's stepdaughter lacked any expertise in conducting speed tests and that the conditions under which she performed her experiment were too dissimilar to the conditions as they existed when defendant was arrested.
It is well settled that a trial court has broad discretion to admit or reject experimental evidence. (People v. Jones (2011) 51 Cal.4th 346, 374-376 (Jones); People v. Bradford (1997) 15 Cal.4th 1229, 1326 (Bradford).) To be admissible, the proponent of the evidence must establish four foundational items: " '(1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury.' " (Bradford, at p. 1326.)
The trial court properly determined that several of the foundational factors were absent in this case. First, the experimental evidence was not produced under substantially similar conditions as those existing when defendant drove his van at the Horton children. She did not drive on a similar street, nor did she drive the van over any curbs, lawns, or driveways, or through trees and trash cans like defendant had done. (Compare Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 522 [evidence of a driving experiment "conducted on a dry, flat, smooth-surfaced road--the exact kind of surface as that involved at the accident scene" was properly admitted].) Although defendant correctly points out that the conditions need not be identical, substantial similarity--the governing standard--is decidedly lacking in this case.
Second, defendant did nothing to establish his stepdaughter's qualifications to conduct such an experiment. Even she conceded she had only been driving for a short time, and it did not appear that she had any experience in calculating rates of acceleration or deceleration. Needless to say, her alleged qualifications to conduct the experiment were not demonstrated with any particularity. (Bradford, supra, 15 Cal.4th at p. 1326.) The record is devoid of any evidence showing she ever received any formal education or training in conducting such experiments, and it does not appear that she had ever conducted similar experiments. (People v. Roehler (1985) 167 Cal.App.3d 353, 385 ["the qualifications of those individuals testifying concerning experimentation outside of court must be established with some particularity"].)
Defendant, moreover, was not deprived of his constitutional right to present a defense. "Application of the ordinary rules of evidence, such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense [citation]; certainly the marginal probative value of this evidence does not take it outside the general rule." (People v. Snow (2003) 30 Cal.4th 43, 90 [exclusion of evidence that witness allegedly misidentified defendant as robber, which was not at issue in defendant's murder trial, did not deprive defendant of a defense].)
The proposed purpose of his stepdaughter's proffered testimony, moreover, was to show that he was driving slower than the 20 to 25 miles per hour to which Detective Lannom testified. But defendant himself testified that the van was traveling at no more than 17 miles per hour. Because defendant was the actual driver, he was obviously in a position to testify about the van's speed. He also testified that the transmission was in first gear and that the engine had old spark plugs, making the car cumbersome and unable to accelerate to high speeds quickly.
The court was amply justified in excluding the experimental evidence, and doing so did not deny defendant his right to a defense.
V
Unanimity Instruction
Defendant contends the court lowered the prosecution's burden of proof by failing to give a unanimity instruction regarding the stalking charge. He argues the unanimity instruction was required because there was a series of discrete events that could have formed the basis for the jury's verdict that he was guilty of following or harassing Horton in violation of the stalking statute, thereby raising the danger that the jury did not unanimously agree on his guilt.
"The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed." (People v. Zavala (2005) 130 Cal.App.4th 758, 768.) There is a well established exception to the unanimity instruction requirement, however. (Ibid.) Where a defendant is charged with violating a statute by a continuous course of conduct, the unanimity instruction is unnecessary. (Ibid.)
The statutory offense of stalking is self-defined to require a course of conduct. (§ 646.9, subd. (e).) As used in the statute, the term " 'harasses' means engages in a knowing and willful course of conduct," and the phrase "course of conduct" is defined as "two or more acts occurring over a period of time, however, short, evidencing a continuity of purpose." (§ 646.9, subds. (e) & (f).) Alternatively, the statute requires a perpetrator to "repeatedly" follow the victim. (§ 646.9, subd. (a).) Like "course of conduct," the word "repeatedly" means more than one time. (People v. Heilman (1994) 25 Cal.App.4th 391, 400.) Because defendant was charged with a "course of conduct" offense occurring over a period of time, no unanimity instruction was required. (See Zavala, supra, 130 Cal.App.4th at p. 769; People v. Chilelli (2014) 225 Cal.App.4th 581, 586 [stalking is a continuous course of conduct crime].)
VI
Pitchess Motion
Defendant filed a motion pursuant to Evidence Code sections 1043 et. seq. and Pitchess v. Superior Court, supra, 11 Cal.3d 531 for discovery of police personnel records and citizen complaints against Detective Lannom for dishonesty. The trial court granted the motion, finding defendant had satisfied the relatively low good cause threshold on that issue, and conducted an in camera hearing pursuant to Evidence Code section 1045, subdivision (b). Following the in camera review, the court determined that there were no discoverable materials within the relevant five year period nor were there any Brady materials requiring disclosure.
"[B]oth Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) "The statutory scheme carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to the defense." (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.) "A trial court's decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard." (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
Our review of the in camera proceeding shows that there were no qualifying records or citizen complaints regarding falsifying police reports or dishonesty. The trial court, therefore, did not abuse its discretion in denying defendant's discovery request.
VII
Cumulative Error
Defendant contends that any errors, when combined, rendered his trial fundamentally unfair. Reversal, according to defendant, is therefore required.
" '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The few alleged errors that may have occurred during defendant's trial were harmless, and viewed cumulatively, did not significantly influence the fairness of defendant's trial. In other words, whether any purported errors are viewed individually or collectively defendant received a fair trial, although not a perfect one. But perfection is not required. (Ibid.)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MURRAY, J. HOCH, J.