Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC063324
Jenkins, J.
Defendant Stephen Lorenz Schneider appeals his jury trial convictions on charges arising from his involvement in an altercation with correctional officers and deputy sheriffs while he was housed at the San Mateo County Jail in February 2007. We affirm the judgment of conviction.
Procedural Background
On March 23, 2007, the district attorney for San Mateo County filed an information charging defendant in count 1 with felony battery against Correctional Officer Overman, in violation of Penal Code, section 243.1. Count 2 charged defendant with felony assault on Correctional Officer Overman, in violation of section 241.1. Count 3 charged defendant with misdemeanor obstruction of deputy sheriff peace officers, in violation of section 148, subdivision (a)(1). The information further alleged defendant suffered two prior felony convictions, as well as a prior juvenile adjudication.
Further statutory references are to the Penal Code unless otherwise noted.
On July 25, 2007, the trial court found defendant competent to stand trial. The jury heard opening statements on August 21, 2007, and both sides rested that day. The jury retired to deliberate on August 22, 2007, and the following morning returned a verdict of guilty on all charges. In a bifurcated proceeding, the trial court found defendant’s two felony prior convictions true beyond a reasonable doubt. On September 19, 2007, the trial court sentenced defendant to a total prison term of 32 months. Defendant filed a timely notice of appeal on October 19, 2007.
Facts
San Mateo County Deputy Sheriff Jason Gamble was stationed at the county jail at the time of the incident. Gamble explained that the jail is a six story facility with 14 housing units. The third floor is known as the maximum security unit. The maximum security unit is organized into three sections, A side, B side and C side. Classification officers at the county jail determine whether an inmate is initially housed on A, B or C side, and any determination on an inmate’s mental health is made by forensic mental health personnel. A side is for inmates with mental issues and those in protective custody such as gang dropouts. Inmates in section A are housed two to a cell and have privileges such as television that are unavailable in B and C sides. B side houses inmates who pose a direct threat to staff or other inmates due to their aggressive or bizarre behavior. B side has 16 cells and one inmate is assigned to each cell. Also, B side cells are equipped with a two-way intercom system activated from the control tower, but the cells are not equipped with video surveillance. C side houses inmates who have been temporarily segregated for disciplinary reasons before returning to the general population.
Gamble stated that on February 26, 2007, defendant was housed in cell number 2 on B side. Defendant’s cell is not a safety cell, i.e., it is not padded. Defendant had no personal property in his cell, nor did he have any blankets. Defendant had been issued a Ferguson gown and a Ferguson blanket, both made of made of very thick, quilted and tear-resistant material. The Ferguson gown is actually worn around the body and fastened with Velcro straps. It is designed for those inmates who are deemed suicide risks so they can’t hurt themselves with their own clothing.
On the day of the incident, Gamble was assigned to monitor B and C sides, meaning he was responsible for communicating with the inmates and ensuring they got out of their cells for showers, recreation and court appointments. At around 9:45 a.m., Gamble heard loud banging and yelling noises coming from defendant’s cell. Gamble switched on the intercom to the cell and tried to speak with defendant. Defendant said, “Fuck you. Come down here, and I’ll kick your ass.” Defendant continued to “rant on” so Gamble turned off the intercom and contacted Correctional Officer Overman. Gamble summoned Overman because he (Overman) had managed to calm defendant down the day before by talking with him when defendant was acting in a similar manner. As Gamble waited for Overman to arrive from another section of the jail, defendant continued to cause a disturbance by banging and yelling in his cell. Deputy Sheriff Goulart told Gamble he’d seen defendant slam his head against the cell door.
By the time Overman arrived, defendant’s cell was completely silent. Gamble tried to contact defendant over the intercom, but defendant did not respond. Gamble, accompanied by Deputy Sheriff Goulart and Correctional Officers Firkins and Overman, decided to go down to defendant’s cell to make sure he was unharmed because he had been “banging around very hard” and might have knocked himself unconscious. The metal door to defendant’s cell has a vertical, rectangular piece of glass 2.5 feet high and 8 inches wide for seeing into the cell, a speaker cut-out next to the glass for talking into the cell, and a food port below through which meals are passed to inmates. The food port is also used to handcuff the inmate before he is taken out of the cell, a requirement on B side.
Gamble opened the food port door and twice asked defendant to come over and be handcuffed. Defendant did not respond. The officers could see defendant lying on his bunk and decided to enter the cell to make sure he was alive. Officer Overman went in first and asked defendant to get up. When defendant did not respond, Overman grabbed his left wrist in order to place him in handcuffs so he could be transported to a safety cell. Defendant then punched Overman twice in the face with his right fist. The first blow landed square on Overman’s mouth and the second landed somewhere about his head.
After that, Officers Overman and Goulart yanked defendant off the bunk to handcuff him and a violent struggle ensued, with defendant thrashing and flailing about. Gamble and Firkins tried to gain control of defendant’s legs. At one point, defendant got both hands underneath his chest and was lying down on them. During the struggle, the officers were telling defendant, “Stop resisting. Give us your hands.” Finally, Overman and Goulart managed to control defendant’s hands, and Gamble handcuffed him. The entire struggle lasted about 30 seconds.
The officers stood defendant up and walked him out to check him for injuries in the recreation yard where the light was better. Gamble noticed defendant had some redness about his face and torso area. Photographs of defendant’s injuries were taken in the intake area about 10-15 minutes after the incident. At trial, Gamble was shown one of those photographs — a shot of defendant’s face showing small circular markings on his forehead. Gamble stated in his experience the circles were consistent with somebody banging his head against the vent of the cell door or the intercom speaker. Gamble further stated that after defendant was evaluated for injuries, he and Overman transported defendant down in an elevator to the safety cell. The officers did not speak to defendant in the elevator, but defendant stated spontaneously to Overman, “I got you before you got me.”
Correctional Officer Overman was the only other witness for the prosecution during its case-in-chief. Overman’s testimony corroborated Deputy Sheriff Gamble’s testimony. In this regard, Overman stated he interacted with defendant the day before and had calmed him down when he was banging and yelling in his cell; defendant was unresponsive when Gamble told him to come to the cell door so the officers decided to enter the cell to check on his welfare; Overman entered defendant’s cell first and defendant punched him twice in the face without provocation as Overman reached for defendant’s wrist in order to place him in handcuffs. After the incident defendant told Overman, “I got you before you got me.” The jury saw a photograph of Overman’s face in which his lower lip is pulled down to show a cut on the inside of the lip. Additionally, the parties stipulated that, if called to testify, Deputy Sheriff Goulart would state that after Gamble called him to the pod unit on the day in question at around 9:45 a.m., he saw defendant banging his head against the cell door.
Defendant testified in his own defense and offered a different version of events. Defendant stated that on February 26, 2007, he was housed on B side in cell 2. About twenty minutes before the deputies entered his cell, defendant spoke with Officer Moore through the door of the cell. Defendant said Moore was making kicking and punching motions at an imaginary person on the ground and defendant thought Moore was alluding to what defendant “had been through the two days prior to that.” Defendant was annoyed by Moore’s antics, and asked Moore “if he was my probation officer’s husband.” Moore gave defendant “a thumb’s up” so defendant made another derogatory remark at him. Moore left and defendant lay down on his bunk. He assumed Moore had taken no offense at the exchange.
Defendant next heard “a gathering at the doorway” and the officers whispering among themselves. Defendant was lying facing the wall with his head resting on the upper part of his right arm. His forearm lay against the wall with the hand closed in a loose fist. He looked over his shoulder towards the cell door and saw the officers “forming up for a drill.” When the door opened defendant froze, and then the officers grabbed him and flung him out of his bunk. Two officers held down defendant’s hands and Overman punched him at least four times in the face. Then the officers pulled defendant to his feet and dragged him out to the recreation yard.
Defendant stated he never kicked at or punched any of the officers. Defendant stated his hand might have come into contact with Officer Overman’s head as the officers dragged him off the bunk because “my arm had to go somewhere,” but his wrist was limp and his hand just collapsed on top of Overman’s head. In concluding his testimony, defendant said he was surprised when the officers appeared outside his cell, and he opined they came in retaliation for the earlier verbal spat he’d had with Officer Moore.
In rebuttal, Deputy Sheriff Goulart testified he’d been working at the county jail for the past two and a half years and is not familiar with a deputy or a correctional officer by the name of Moore. Goulart stated he was on duty on the day of the incident. He entered defendant’s cell behind Officer Overman and saw defendant punch Overman twice in the face without any provocation.
Discussion
A. Exclusion of Evidence
1. Background
During defendant’s direct testimony, he stated he was currently housed on A side and had been there for about a month. In response to a question regarding whether he had been given medication while in custody, defendant stated that while he was in the disciplinary holding area, “I started receiving medication because I needed help with sleep on C side.” Defendant thought he’d been given Adrax at first, then he asked to “try something for bipolar, and [] they started giving me Depakote.”
The prosecutor objected at this point and the jury was excused. Out of the presence of the jury the prosecutor explained to the court that she objected “to the defendant testifying as to his own medical condition” because it lacked foundation and was hearsay. The prosecutor also asserted that defendant’s “mental state is not at issue” because he was charged with general intent crimes. Defense counsel replied that although defendant’s reference to “bipolar [] came out of nowhere,” his mental state was still relevant “insofar as what he perceived to be happening at the time that these people rushed into his cell. Was he under medication when they came and rushed into the cell, what he thought happened, that type of thing.” The court asked defense counsel if such medication evidence would be “correlated to the specific day in question, February 26,” and counsel replied affirmatively. Defense counsel stated defendant’s medical records showed he was currently on a daily dose of 500 milligrams of Depakote. The following colloquy ensued:
“The Court: It’s not relevant today six months after the fact. What is relevant is the day in question or perhaps shortly after.
Defense Counsel: That’s what I want to get to. Obviously the next question, on the day this happened, were you taking medication. And the answer would be yes or no.”
The trial court suggested they do a “dry run” since the jury was still out. Defense counsel then asked defendant out of the presence of the jury if he was taking medication on the day of the incident. Defendant replied, “I’m not going to say it was that day. But on the day this incident took place, I was not under any medication.”
The prosecutor then requested that the trial court admonish the jury to disregard defendant’s earlier testimony about his housing and medication subsequent to the incident, and his comment about having a bipolar condition. Defense counsel opined that the issue of defendant’s subsequent housing was relevant “because we’ve had [a] significant amount of testimony about where people are housed.” The court asked defense counsel to “voir dire [defendant] about the housing issue specifically so that I can evaluate that.” Upon further questioning, defense counsel learned that defendant did not consult with forensic mental health until after this incident when he was placed into C side. The trial court then asked counsel to make an offer of proof about “what, if any of this, you wish the jury to consider.” Defense counsel stated, “Well, what I wanted the jury to consider that in his housing he had been seen by mental health and placed on B side. But apparently of [sic] the facts that he was not seen by mental health until after this incident.” Accordingly, defense counsel agreed with the court’s assessment that he should not “get into that area . . . at all.”
Thereafter, without any further objection from defense counsel, the trial court informed the prosecutor of its intention to strike the statements defendant made “with regard to medication, and subsequent housing, and being bipolar.” Concurrently the court instructed the jury as follows: “The court has determined that the testimony we’ve heard relative to housing after February 26, 2007, medications that may have been taken after February 26, 2007, and the statement with regard to bipolar diagnosis are all irrelevant and are stricken. And you are admonished not to consider them as evidence in this case.”
2. Analysis
Defendant asserts that the trial court erred by striking his testimony concerning his housing after the date of the incident, medications taken after the date of incident, and his statement that he was bipolar. Defendant contends this evidence was relevant to rebutting “the inference from the prosecution’s case-in-chief that [he] was a violent inmate based on his housing.”
Respondent asserts defendant has forfeited the issue on appeal by failing to object below. Defendant replies he preserved the issue for appeal because he lodged an objection to the exclusion of the evidence before the court ruled and any objection after the court delivered its ruling would have been futile. We agree defendant forfeited the issue by failing to make a specific and timely objection below on the ground urged on appeal. (People v. Poggi (1988) 45 Cal.3d 306, 331.)
The record below shows defense counsel wanted to establish defendant was on medication at the time of the incident and that he had been examined by forensic mental health personnel prior to that time. The court allowed defense counsel to voir dire defendant out of the presence of the jury in an effort to make such a showing. After defense counsel was unable to elicit the desired testimony from defendant on voir dire, he concurred in the court’s ruling that defendant’s testimony regarding housing and medication subsequent to the events in question was not relevant. As a consequence, defendant has forfeited the issue of the admissibility of that evidence on appeal. (People v. Richardson (2008) 43 Cal.4th 959, 1017, fn. 20 [assignment of error forfeited where defendant “failed to press the court for a ruling as to [witness’s] testimony after the court tentatively excluded the evidence but reserved final decision”]; People v. Coffman (2004) 34 Cal.4th 1, 113 [contention that testimony should have been excluded as improper evidence of a propensity for violence forfeited on appeal where defendant failed to object on this specific ground at trial].)
Even if defendant had not forfeited the issue for purposes of this appeal, we would reject it as meritless. First, defendant was not competent to testify about whether he suffers from a bipolar condition (See Evidence Code, § 702 [testimony inadmissible absent personal knowledge of matter]), and any testimony by him that he had been diagnosed with such condition constitutes inadmissible hearsay. (Evidence Code, § 1200; People v. Morrison (2004) 34 Cal.4th 698, 724 [“proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule”].)
Second, the trial court did not abuse its discretion in excluding defendant’s testimony about his medication and jail housing subsequent to the incident in question. (People v. Harris (2005) 37 Cal.4th 310, 337 [trial court has “broad discretion in determining the relevance of evidence” and its rulings on the admissibility of evidence are reviewed for abuse of discretion].) “The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Citations)’ (Citation.) ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ (Citation.)” (Ibid.)
Here, evidence of defendant’s medication and jail housing subsequent to the events in question has no probative value on the issues of whether defendant, at the time of the incident, willfully punched Officer Overman in the face or knew that the persons in his cell were officers acting in the lawful performance of their duty. Defense counsel acknowledged as much when he declined to make any further offer of proof after his voir dire of defendant revealed that defendant was not on medication at the time of the incident and that he was not evaluated by forensic mental health personnel until after the incident. Thus, the trial properly excluded the testimony at issue for failure of proof. (People v. Morrison, supra, 34 Cal.4th at p. 724 [“Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence.”].) Moreover, even if defendant’s testimony could be viewed as relevant to rebutting an inference that he was a violent inmate based on his housing, any such relevance was outweighed by the potential to confuse the issues and mislead the jury by injecting the question of defendant’s mental health into the trial without foundational medical testimony. (Evid. Code, § 352.) In sum, the trial court did not err by excluding defendant’s testimony about his bipolar condition, medications and jail housing subsequent to the events in question.
Accordingly, defendant’s claim that the trial court also violated his federal constitutional right to present a defense by excluding the testimony at issue fails as well because “the ordinary rules of evidence, including the application of Evidence Code section 352, do not infringe on the accused’s due process right to present a defense” (People v. Frye (1998) 18 Cal.4th 894, 948), unless the trial is thereby rendered “fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
B. CALCRIM 337
The trial court instructed the jury with the following version of CALCRIM 337: “When Stephen Schneider testified, he was in custody. Do not speculate about the reason. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.” By dint of the phrase “by itself” in the second sentence of the instruction, defendant contends the instruction improperly permitted the jury to “use the fact of incarceration, when combined with other evidence, to assess [his] credibility as a witness.” We disagree.
In testing the adequacy of instructions we must decide whether the trial court fully and fairly instructed on the applicable law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “ ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]” ’ (Citation.)” (Ibid.) “ ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ ” (Id. at p. 1112.) Claims that a jury instruction is ambiguous are scrutinized for a “reasonable likelihood that the jury misconstrued or misapplied the words” of the court’s instruction. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Judged against these standards, we conclude there is no reasonable likelihood the jury applied CALCRIM 337 in the manner suggested by defendant. CALCRIM 337 ensures that a witness’s custodial status is a neutral factor for purposes of evaluating the witness’s credibility because it informs the jury that a witness being in custody does not by itself make that witness any more or less believable. With custodial status thereby neutralized as a factor in evaluating credibility, CALCRIM 337 further instructs the jury to “[e]valuate the witness’s testimony according to the instructions I have given you.” In this case, the jury was given CALCRIM 226, which listed the factors it could consider in assessing a witness’s credibility. Custodial status is not among the factors listed in CALCRIM 226 as given to the jury.
Additionally, we note that in determining how the jury must have understood the instructions, it is often helpful to examine the arguments of counsel. (See People v. Kelly (1992) 1 Cal.4th 495, 526-527.) Here, the prosecutor talked at length to the jury about how to evaluate the credibility of defendant against that of the officers. She mentioned perception and recall, behavior during testimony, bias or prejudice, defendant’s past statements, and his prior felony conviction, but she did not mention defendant’s custodial status.
In sum, we conclude that when CALCRIM 337 is read as a whole and viewed in the context of the overall charge, there is no reasonable likelihood that the jury would have construed CALCRIM 337 as permitting it to consider defendant’s custodial status as a factor in evaluating his credibility. (People v. Clair, supra, 2 Cal.4th at p. 663.)
Nevertheless, the Advisory Committee on Criminal Jury Instructions may wish to consider whether elimination of the phrase “by itself” would improve the clarity of CALCRIM 337.
C. Effectiveness of Counsel
Defendant contends his trial counsel rendered ineffective assistance by failing to object to prosecution testimony regarding his housing within the jail and by failing to object to CALCRIM 337 as erroneous. Defendant asserts that evidence he was housed on B side within the maximum security unit was not relevant to the charges, and that if his trial counsel had objected under Evidence Code section 352, the trial court would have excluded it as more prejudicial than probative. Defendant further asserts that counsel’s failure to object was prejudicial because evidence he was housed on B side gave rise to an inference he was “just plain mean” and had committed prior acts of violence.
The latter claim fails because we have concluded CALCRIM 337 as given was not erroneous.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . . ” and . . . should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
Failure to object to specific items of evidence generally is a matter of trial tactics which seldom establishes defense counsel’s incompetence. (People v. Johnson (1993) 6 Cal.4th 1, 35 [abrogated on another ground by People v. Rogers (2006) 39 Cal.4th 826, 879].) Moreover, it cannot be said counsel was ineffective if there was a plausible tactical reason for the failure to object. (People v. Sapp (2003) 31 Cal.4th 240, 277 [no ineffective assistance where “counsel’s choice to forgo any objection may have been tactical”]; People v. Jones (2003) 29 Cal.4th 1229, 1254 [“where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions”].)
In this case we need not assess prejudice because counsel’s performance was not deficient. First, there is no merit to defendant’s contention that the trial court would have sustained an objection to the officers’ testimony in question on grounds of relevance under Evidence Code, section 352. The altercation took place in a cell located on a wing of the maximum security unit, not in a cell located within the general jail population. The officers’ testimony provided useful background information in describing the scene of the events, especially in light of the fact defendant was dressed in a Ferguson blanket or gown at the time of the incident, and not in regular prison clothing. Accordingly, the officers’ testimony based on personal knowledge concerning the layout, organization, and make-up of the jail population housed in the maximum security unit was relevant under the res gestae rule codified in Evidence Code, section 356. Thus, defense counsel had no responsibility to make an unmeritorious objection. (People v. Price (1991) 1 Cal.4th 324, 386-387.)
Second, even if trial counsel could have successfully objected to the testimony, defendant fails to establish the absence of a tactical reason for trial counsel’s decision not to object. Indeed, defendant acknowledges trial counsel may not have objected so that he could try to elicit further testimony from the officers sufficient to raise an inference that defendant was impaired at the time of the incident and “lacked the knowledge necessary to commit the charged crimes.” Such a tack is evident in counsel’s successful objection to Officer Gamble’s testimony that defendant was assigned to B side because he was aggressive towards booking staff during the admittance process. On cross-examination, counsel then elicited testimony from Gamble that A side houses inmates with “mental issues” who are all on medications. However, both Gamble and Overman responded that they did not know whether defendant was on medication. Thus, counsel was unable to establish that defendant was on medication like those inmates on A side of the maximum security unit. However, counsel did manage to establish through Gamble’s cross-examination that there are other inmates on B side taking medications. Counsel also managed to establish, over specific objection by the prosecutor, that during Gamble’s time in the maximum security unit defendant had “been housed in the mental area cell A.” In sum, the record reflects a tactical strategy behind counsel’s decision not to object to the officers’ testimony about the organization of the maximum security unit and defendant’s placement within it. Even if counsel’s strategy was ultimately unsuccessful, that does not amount to deficient performance. (People v. Cox (1991) 53 Cal.3d 618, 662 [“Lack of success does not reflect incompetence of counsel.”].)
Disposition
The judgment of conviction is affirmed.
We concur: McGuiness, P. J., Pollak, J.