Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF1263, Dan McNerney, Judge.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Courtney Allan Rhodes was convicted of aggravated assault (Pen. Code, § 245, subdivision (a)(1)) and sentenced to a two-year prison term. He argues the trial court erred by excluding evidence of the assault victim’s prior conduct, which Rhodes claims precluded him from presenting evidence relevant to his self-defense claim and thereby violated his state and federal Constitutional right to due process and a fair trial. Rhodes also argues the court abused its discretion by sentencing him to prison rather than granting probation as the probation department recommended. Finally, Rhodes points out that the abstract of judgment incorrectly states he was convicted of assault with a deadly weapon instead of aggravated assault. The Attorney General concedes this final issue. Therefore, we order the clerk of the superior court to correct the crime designation on Rhodes’ abstract of judgment and to forward a corrected copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise stated.
I FACTS
On May 25, 2007, at approximately 10:30 p.m., then 62-year-old Lari Davis returned to the Huntington Beach home he shared with his 58-year-old wife, Janice. A car was parked along the curb in front of his home. Davis parked his car directly in front of this car, leaving just a small space between the two vehicles. Davis feared he would be accused of hitting the other car and decided to take several pictures to document where he parked. His neighbor, Tracy Poquette, thought he was taking pictures of her and a neighboring house. Poquette told Davis to stop taking pictures. Eric Poquette, Tracy’s husband, walked outside and told Davis to stop taking pictures. Eric claimed Davis took two pictures of him before going inside his own residence.
We occasionally refer to the parties individually by their first names for clarity and intend no disrespect by this informality.
Tracy called her next door neighbor, Cassie Thomason, and told her Davis was outside taking pictures. She told Cassie to close her front window blinds, and when Cassie went to shut the blinds, she saw Davis outside taking pictures. Cassie then called her husband, Ryan Thomason, who was at a wedding rehearsal with Rhodes, and told him what Davis had done. After talking with her husband, Cassie heard dogs barking in the backyard and someone “shushing” them. Rhodes then received a call from his fiancé who was at home with Cassie. His fiancé was scared and asked Rhodes to come home. Rhodes and Thomason returned home shortly thereafter.
At approximately 1:00 a.m., 21 year-old Rhodes and his friend, Thomason, knocked on the front door of Davis’s home. Davis woke up and got out of bed to answer the door with his wife in tow. Davis said that he saw two figures jumping up and down at the door, bouncing their heads on the windows. Davis decided to open the door because he believed his neighbors might have called the police. He testified that Thomason appeared to be intoxicated and said, “You’ve been taking pictures of my mother and my kid.” Thomason claimed he simply asked Davis why he was taking pictures of his family.
Davis lunged at Thomason and told him to “get the fuck out of here.” He attempted to push Thomason’s face out of the doorway so he could shut the door, but during the attempt, Davis was struck in the head. Thomason claimed he struck Davis in self-defense. However, he entered Davis’s home and started to choke him. Davis fought back and tried to hit Thomason’s head against the wall. However, Thomason overpowered Davis, and Davis passed out. He regained consciousness when Thomason released his choke hold, but then lost consciousness, again. When Davis regained consciousness for the second time, Thomason head-butted him. This caused Davis to lose consciousness for a third time. Davis said that he had an “out-of-body” experience where he saw Thomason and Rhodes kicking his body, which was in the fetal position on the kitchen floor.
Janice Davis tried to help her husband by hitting Rhodes. However, she was hit in the head and went into a daze. Janice grabbed a cordless phone and went outside to call for help. Rhodes followed her, grabbed the phone, and threw it across the street. He and Thomason left the Davis home, and Janice found another telephone.
Rhodes and Thomason claimed the entire incident occurred outside the Davis home in a front courtyard area. Davis’s neighbor across the street stated that he heard giggling outside and saw two men coming out of Davis’s courtyard. Rhodes and Thomason went to Ron Frontino’s home next door, where they were staying with Thomason’s mother. Shortly thereafter, they left Frontino’s home and drove to another friend’s house.
Meanwhile, Davis and his wife were taken by ambulance to a hospital emergency room. Davis suffered an injury to his eye socket, multiple facial fractures, and a cut lip that required stitches. He was bruised around his eyes, on his arms, his throat, below his ribs and above the waist. He also complained of shoulder pain around the clavicle, numbness in his teeth, sinus headaches, and vertigo. Janice had a bruise on her forehead.
At trial, Davis testified that he suffers from multiple personality disorder and that he has 35 personalities, although he claimed that he did not change personalities on the night of the incident. He admitted taking Paxil, but testified that Paxil did not affect his perceptions of what happened.
II DISCUSSION
Evidentiary Errors
The prosecutor filed a pretrial motion to exclude evidence of Davis’s prior conduct with various neighbors. At the hearing, defense counsel made an offer of proof concerning Davis’s prior acts of aggression and false statements. According to this offer of proof, various neighbors would testify that Davis shouted profanity and made racial slurs against his neighbors on several prior occasions. Davis threatened to “kick [the] ass” of one of the teenage boys on the street after the boy’s basketball hit Davis’s garage door. On another occasion, Davis allegedly charged at the boy when the boy rode his skateboard on the sidewalk in front of Davis’s home. Children in the neighborhood were afraid of Davis as a result of his continual outbursts. Davis called Social Services alleging one of his neighbors had abused their child, and two of his neighbors’ employers alleging they conducted personal business on company time. He also called the police on his neighbors for alleged parking violations. Several months after the incident involving Thomason and Rhodes, the neighbors obtained a temporary restraining order against Davis.
The court ruled that evidence of Davis’s prior conduct was irrelevant and inadmissible under Evidence Code section 1102 because none of his alleged conduct demonstrated a tendency to physical violence. The court also excluded as irrelevant and unduly prejudicial evidence that Janice had told a defense investigator that her husband had “grabbed her face, slapped her or possibly choked her” some years prior to this incident.
On appeal, Rhodes argues Davis’s prior conduct was essential to his self-defense claim, and that exclusion of this evidence denied him due process and a fair trial. We disagree.
Evidence Code section 1101, subdivision (a) states, “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, 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.” “Evidence Code section 1103 authorizes the defense in a criminal case to offer evidence of the victim’s character to prove his conduct at the time of the charged crime. Consequently, in a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447, fns. omitted.) However, “[t]he trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.” (People v. Wein (1977) 69 Cal.App.3d 79, 90.)
Here, none of the proffered instances of Davis’s conduct included any acts of physical violence, which is what Rhodes contended occurred in this instance. As the trial court correctly noted, “[n]othing in the long list and long recitation of conduct by Mr. Davis in the neighborhood, in the court’s view, comes close to [violent conduct].” Though Davis threatened he would “kick [the] ass” of a neighborhood boy, he never actually touched the child. This is true of each one of the reported incidents. Admittedly, Davis is not a model neighbor, but Rhodes failed to demonstrate that Davis has any tendency to be physically violent as opposed to offensive and generally obnoxious. The latter traits hardly qualify as justification for the physical beating Davis and his wife sustained. Furthermore, there was no evidence Rhodes, who did not live in the neighborhood but was merely visiting, had any prior contact with Davis such that he could justify harboring the apprehension of violence. Under these circumstances, the trial court properly excluded evidence of Davis’s prior conduct, and we find no violation of Rhodes’s constitutional right to present a defense, or his due process right to a fair trial.
Rhodes also argues the trial court erred by denying him the opportunity to cross-examine Davis about a prior incident where he allegedly hit his wife. Defense counsel sought to introduce the testimony under Evidence Code section 1103, subdivision (b) and for impeachment purposes. However, the court refused to admit this evidence, and Rhodes claims the court’s ruling violated the confrontation clause of the federal Constitution. We disagree.
Under Evidence Code section 352 the trial court has broad discretion to exclude character 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.” (Evid. Code, § 352). Defense counsel’s offer of proof was that Janice told a defense investigator that Davis had “grabbed her face, slapped her or possibly choked her” some years ago. Davis told the defense investigator that he grabbed Janice’s face but could not remember if he slapped or choked her. Thus, the facts were disputed, and admission of this evidence would have required a substantial amount of time in order for the jury to ascertain what actually occurred between Davis and Janice several years prior to this incident. Given the speculative nature of the proffered evidence, the fact that it happened years before this incident and did not involve a third party, we conclude the trial court correctly ruled the evidence more prejudicial than probative. Moreover, we find no violation of Rhodes’s constitutional right to confront adverse witnesses as a result of the trial court’s ruling.
Probation Recommendation
The probation department recommended Rhodes be granted formal probation following “an appropriate” period of local custody. The probation officer believed this to be an appropriate sentence based on Rhodes’s lack of prior criminal convictions and need for alcohol treatment. The court rejected this recommendation and imposed the low term of two years for assault by means of force likely to produce great bodily injury. Rhodes argues the court abused its discretion in rejecting the probation department’s recommendation for probation. We disagree.
“The granting of probation is entirely within the sound discretion of the trial court; a defendant has no right to probation.” (People v. Osslo (1958) 50 Cal.2d 75, 103.) “A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
The court considered several factors in denying Rhodes’s request for probation, including his three prior arrests for drunk driving, failure to appear at court for the offenses, and his continued assertion of self-defense in the attack on Davis despite the evidence adduced at trial and the jury’s verdict. Furthermore, one witness testified Rhodes and Thomason giggled as they ran from the Davis residence after battering Davis and leaving him bleeding on the kitchen floor. Therefore, the court did not act arbitrarily or capriciously, but well within its broad sentencing discretion by denying probation.
Abstract of Judgment
Rhodes was convicted of an assault likely to produce great bodily injury, pursuant to section 245, subdivision (a)(1). However, the abstract of judgment states he was convicted of assault with a deadly weapon, which is a separate crime under the same statute. Therefore, we order the trial court to amend the abstract judgment to correctly reflect Rhodes’s conviction of an assault “by means of force likely to produce great bodily injury.” (§ 245, subd. (a)(1).)
III DISPOSITION
The clerk of the superior court is directed to correct the abstract of judgment to describe Rhodes’s conviction for an assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, J., FYBEL, J.