Opinion
C079631
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL PUTHUFF, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM041911)
Convicted of assault with a deadly weapon and sentenced to state prison, defendant Anthony Michael Puthuff appeals. He contends the trial court erred by: (1) admitting evidence of a prior crime he committed as evidence of his motive to commit the current crime and (2) instructing the jury on the definition of motive. Finding no error, we affirm.
BACKGROUND
The victim, Bradley Stricklin, testified that he was an off-duty employee (doorman/bouncer) at Riley's Bar and Grill in Chico on the night of the crime. He was at Riley's drinking and watching a football game along with another off-duty employee, Anthony Jones. Stricklin noticed that a patron who had been kicked out of the bar because he was too intoxicated was trying to get back in. The patron was being aggressive with the doorman, so Stricklin and Jones when over to assist. Outside the door of the bar, Jones tried to calm the situation by explaining to the patron that he could not come back in. Defendant rushed up and looked like he was going to hit Jones in the back of the head, so Stricklin grabbed defendant by the top of his backpack and pulled him back. Defendant, who was intoxicated, fell to the ground. He jumped back up, extremely mad, and screamed in Stricklin's face. Stricklin explained to defendant that he worked there at Riley's and that the dispute with the other patron had nothing to do with defendant. Stricklin asked defendant to leave.
Instead of leaving, defendant screamed obscenities in Stricklin's face. Hearing the screaming, Jones intervened and told defendant to leave, but defendant remained and engaged in some pushing back and forth with Jones. Stricklin stepped in and pushed defendant to the ground. Stricklin felt out of breath and realized he had been stabbed twice. Defendant never appeared to be afraid of Stricklin throughout the incident.
Stricklin had two stab wounds on the left side of his body, one of which pierced his stomach and required surgery to repair. He was in the hospital for five or six days.
The testimony of the other participants and witnesses varied in some details.
Jones testified that, after Stricklin pulled defendant down by his backpack, Jones and Stricklin headed back to the door of the bar, but defendant pulled a pocket knife from his backpack. Jones returned and hit defendant in the face. Defendant continued to ignore the requests to leave, so Stricklin tackled defendant, at which time defendant stabbed Stricklin. Jones jumped in and grabbed the knife.
Dan Luck, the doorman on duty at Riley's that night, testified that defendant approached while Luck was dealing with the intoxicated patron who wanted to enter the bar. Defendant expressed concern about the treatment of the intoxicated patron. After Stricklin pulled defendant down by his backpack, defendant was angry, hostile, and aggressive, and did not show fear.
A bar customer, Jack Carlile, testified that defendant shoved Stricklin, and Stricklin shoved defendant back, causing defendant to fall. Defendant was angry when he got up, and he attacked Stricklin. Carlile did not see that defendant had a knife at that time and did not see defendant stab Stricklin, but he saw the knife in defendant's hand after Stricklin had been stabbed. Defendant did not appear to be afraid.
Defendant claimed, through his attorney, that he acted in self-defense.
The district attorney filed an information charging defendant with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with additional allegations that defendant: (1) personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), (2) served two prior prison terms (Pen. Code, § 667.5), (3) had a prior strike conviction (Pen. Code, §§ 667, subd. (d); 1170.12, subd. (b)), and (4) had a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)).
The trial court declared a mistrial after the first jury was unable to reach a verdict.
On retrial, a second jury convicted defendant of assault with a deadly weapon and found true the great bodily injury allegation. Defendant admitted the prior conviction allegations.
The trial court sentenced defendant to a total state prison term of 18 years. The court imposed the upper term of four years for assault with a deadly weapon, doubled to eight years under the "Three Strikes" law. The court also imposed consecutive terms of three years for the great bodily injury enhancement, five years for the prior serious felony conviction, and two years for the prior prison terms.
DISCUSSION
Each of defendant's two arguments on appeal arise from the prosecution's introduction of evidence of a prior incident in which defendant struck a bar employee with a glass. The trial court admitted the evidence to show motive and intent, citing People v. Spector (2011) 194 Cal.App.4th 1335 (Spector), which held that evidence of other crimes is admissible to show a state of mind or state of emotion in connection with the other crime, leading to an inference that defendant acted consistent with the same state of mind or state of emotion in committing the charged offense. (Id. at p. 1383.)
At trial, the victim of the prior crime, Eric Greenley, testified concerning the circumstances of that crime. Greenley was manager of the door staff at a different restaurant and bar in downtown Chico. On the evening of October 4, 2012, two years before the crime in this case, Greenley asked his door staff to ask customers to take skateboards and motorcycle helmets out of the premises because the business was transitioning from a restaurant to a bar for the evening. Defendant was there and had a motorcycle helmet with him. When defendant was asked to take his motorcycle helmet out of the bar, he became upset because he had just bought a beer and did not want to leave. Greenley told defendant he could finish his beer and then leave with the helmet. Defendant did not appear to have a problem with that plan, so Greenley walked away. Soon after that, however, defendant began making a commotion. Defendant argued with the bar staff, so Greenley told defendant that he needed to leave. Defendant grabbed a glass from a table and hit Greenley in the head with it. After a scuffle, Greenley and his staff held defendant down until the police came and arrested him. Two or three weeks later, Greenley saw defendant at Jamba Juice. Defendant said Greenley's name and added, "I know who you are," in a threatening manner.
In its pretrial ruling, the trial court found under Evidence Code section 1101, subdivision (b), that the prior crime evidence was relevant to defendant's claim that he acted in self-defense because the circumstances of the prior crime provided a reasonable inference that defendant acted out of a common motive to attack a bar employee or a common emotion of dislike toward bar employees. The court also found that the prior crime evidence was more probative than prejudicial under Evidence Code section 352.
I
Prior Crime Evidence
Defendant contends that the trial court improperly admitted the prior crime evidence at the second trial. (The prior crime evidence was not introduced at the first trial, which ended in a mistrial.) We conclude the contention is without merit because: (1) defendant forfeited the contention by failing to base it on the evidence before the trial court when it ruled and (2), in any event, the evidence was admissible to show motive.
A. Forfeiture
In making his argument that the evidence was improperly admitted, defendant relates the evidence introduced at trial after the trial court ruled that it was admissible. He makes no citation to the record concerning what evidence or proffer of evidence was before the trial court when it ruled on the prosecution's motion to admit the evidence. While he notes that the prosecutor made the motion to admit the evidence and recounts some of the arguments made by counsel, the facts of the prior crime that he relies on were elicited at trial after the trial court made its ruling.
When we review a trial court's ruling, we do so based on what was known to the trial court at the time it made the ruling. (People v. Mason (1991) 52 Cal.3d 909, 933.) When an appellant fails to base his argument on the facts known to the trial court and fails to cite to the record showing what the trial court knew, the contention is forfeited because it is not based on the proper facts. (See Cal. Rules of Court, rule 8.204(a)(1)(C) & (2)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Therefore, defendant forfeited his contention concerning admission of evidence because he did not cite to and rely on the facts known to the trial court when it ruled on the motion to admit the evidence.
B. Merits
Even if we were to reach the merits of this argument, we would find that it is without merit because the trial court did not abuse its discretion by admitting the prior crime evidence.
Evidence Code section 1101, subdivision (a), provides that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." However, subdivision (b) of that section provides that a specific instance of a person's conduct is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) Here, the trial court admitted the evidence of defendant's prior crime to show motive.
"When the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent. [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. [Citations.] The decision whether to admit other crimes evidence rests within the discretion of the trial court. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 23; see also People v. Kelly (2007) 42 Cal.4th 763, 783.)
" ' "[W]hen the commission of a criminal act [(the crime for which defendant is on trial)] is a disputed issue, evidence of motive may become relevant to that issue. Motive is itself a state-of-mind or state-of-emotion fact. Motive is an idea, belief, or emotion that impels or incites one to act in accordance with his state of mind or emotion. Thus, evidence, offered to prove motive, that defendant committed an uncharged offense meets the test of relevancy by virtue of the circumstantial-evidence-reasoning process that accepts as valid the principle that one tends to act in accordance with his state of mind or emotion." [Citation.]' [Citations.]" (Spector, supra, (2011) 194 Cal.App.4th at pp. 1382-1383, italics omitted; see also People v. Walker (2006) 139 Cal.App.4th 782, 803 [evidence of prior sexual assaults tended to show defendant's " 'common motive of animus against prostitutes resulting in violent batteries interrupting completion of the sex act' "].)
"Although motive is not an element of any of defendant's crimes, 'the absence of apparent motive may make proof of the essential elements less persuasive . . . .' [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 604.)
In Spector, the trial court instructed the jury on the definition of "motive" as it relates to other crimes evidence. In that case, the prosecution introduced evidence of the circumstances of defendant's seven prior assaults on women in circumstances similar to the killing of the victim in the case on trial. The court defined "motive" as " 'an emotion that may impel or incite a person to act in accordance with his state of emotion.' " (Spector, supra, 194 Cal.App.4th at p. 1382, italics omitted.) The defendant in Spector argued that this definition was " 'wholly at odds with the term's legal definition in the context of section 1101(b) evidence.' " (Ibid.) But the Court of Appeal disagreed. It determined that the definition was accurate and applicable to the facts of the case, reasoning: "In every one of the seven assaults [prior crimes], Spector was extremely angry or enraged. And during five of the seven incidents, Spector manifested a significant mood swing. Hence, there was evidence Spector had exhibited an extremely heightened emotional state during these prior assaults." (Id. at p. 1384, fns. omitted.) Since the same facts concerning Spector's emotional state were present in both the prior crimes and the present crime, the evidence tended to prove the defendant's guilt. The court therefore concluded that the definition of motive in the trial court's instruction was not erroneous. (Id. at pp. 1384-1385.)
For reasons similar to those explained in Spector, the trial court's admission of the prior crime evidence in this case was proper. Here, the prior crime tended to show defendant's animus toward bar employees and his violent outbursts when those employees asked him to do something, especially to leave. For that reason, admission of the prior crime evidence made defendant's self-defense argument less persuasive because the jury could conclude that defendant acted with a common motive in the two instances—that is, to attack bar employees when asked to leave.
Defendant, however, argues that there were "critical dissimilarities" between the prior and current crimes that "undermined any relevance of the former to the latter." To the contrary, the dissimilarities between the two crimes did not undermine the relevance of the prior crime to the motive behind the current crime. Defendant claims: (1) defendant initiated contact in the prior crime but did not initiate contact in the current crime; (2) the victim in the current crime had been drinking, while the victim in the prior crime had not; (3) defendant said he felt disrespected during the events leading to the current crime, while he made no such expression during the events leading to the first crime; and (4) the two incidents occurred about two years apart.
These dissimilarities are inconsequential to the analysis concerning the trial court's admission of the evidence. As noted, the evidence was admissible to support the prosecution's arguments concerning motive. Defendant was free to argue the dissimilarities to the jury, but those dissimilarities were insufficient to require exclusion of the evidence.
Defendant also claims that the prejudicial effect of the prior crime evidence far outweighed its probative value and should have been excluded under Evidence Code section 352. We disagree. "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." (People v. Lopez (1969) 1 Cal.App.3d 78, 85.) There was nothing so shocking about the prior crime evidence as to require the trial court to exclude it because it was too prejudicial.
II
Instruction on Motive
Defendant contends that the trial court erred by adding text to an instruction on motive, using the definition of motive from Spector. As noted above, the court in Spector held that the language was accurate and applicable to the facts. (Spector, supra, 194 Cal.App.4th at p. 1384.) The trial court's use of the same definition of motive in this case also was not erroneous.
The trial court instructed the jury concerning motive and added the definition from Spector, as follows: "If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant had a motive to commit the offenses alleged in this case. For the purposes of this instruction, motive is an emotion that may impel or incite a person to act in accordance with his state of emotion." (Italics added.) The italicized part of the instruction is the part to which defendant objects.
The court in Spector determined that this definition of motive was proper as a jury instruction. Defendant asks us to disagree with Spector and find that the definition of motive in the instruction was unnecessary and confusing. His only argument is that the CALCRIM instruction on motive (CALCRIM No. 375) was sufficient without the added definition. This argument fails to convince us, however, that the addition of the definition confused or misled the jury.
"In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled. [Citations.]" (People v. Tate (2010) 49 Cal.4th 635, 696.) Here, the addition of the definition of motive to the jury instruction did not mislead the jury.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. HOCH, J.