Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge. Los Angeles County Super. Ct. No. KA075661
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Christopher Sloat (defendant) of three counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court found true the allegations that defendant suffered a prior conviction within the meaning of sections 667, subdivision (b) through (i) and 1170.12, subdivisions (a) through (d); that he suffered a prior serious felony conviction (§ 667, subd. (a)); and that he had served four prior prison terms (§ 667.5, subd. (b)). The trial court struck two of the prior prison term allegations in the interest of justice and sentenced defendant to state prison for 13 years.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred in excluding evidence of the victim’s “violent” character. Respondent contends that the trial court erred in imposing on defendant a single $20 court security fee rather than a $20 court security fee as to each of defendant’s three convictions. We affirm the judgment of conviction and order the abstract of judgment modified to reflect a total of $60 in court security fees.
BACKGROUND
About 7:00 p.m., on July 8, 2006, Alan Bushman and his wife, Stacy Shenk, were at an Arco gas station at Foothill and Lynoak in Pomona as they rode their bikes toward Garey Avenue. While Bushman and Shenk were at the gas station, defendant, whom Bushman had known for about a year, drove his Jeep Cherokee into the gas station and stopped. Defendant stared at Bushman and Shenk, then drove directly at them “rapidly.” Bushman estimated that defendant was traveling about 30 miles per hour when he reached Bushman’s location.
Bushman and Shenk swerved to avoid being struck, and defendant’s vehicle passed within three to four inches of Bushman. Defendant stopped, put the Jeep in reverse, and backed straight toward Bushman at about 20 miles per hour. When defendant was within two or three feet of Bushman, Bushman jumped off his bicycle, and defendant ran over the bicycle. Defendant stopped and drove toward Bushman again, driving about 30 or 40 miles per hour. Bushman attempted to alert others to defendant’s conduct, “yelling for somebody, anybody, if they could see what [defendant] was doing . . . .” Bushman backed up and tripped. When defendant’s Jeep approached him, Bushman rolled out of the way. Bushman was holding a wicker bassinet that defendant knocked out of Bushman’s hands as he passed. The bassinet hit the Jeep’s windshield. Defendant drove out of the gas station. Bushman testified that defendant laughed at him throughout the “series of confrontations.”
Richard Viselli and his wife, Carol Viselli, were also at the gas station and witnessed part of the incident. As Richard Viselli pumped gas, he saw defendant’s Jeep driving “at a very fast rate.” The Jeep appeared to have hit “a basket off of a bicycle.” Richard Viselli saw defendant stop and back up “very aggressively,” running over Bushman’s bicycle. Defendant then pulled around the Visellis’ car at a “very fast rate,” missing Richard Viselli by inches. Defendant’s tires squealed and he drove “straight towards” Bushman. Bushman jumped out of the way and rolled to the ground. Defendant sped away.
Carol Viselli called 911. City of Pomona Police Officer Harry Jung responded to the gas station. About two hours later, the police apprehended defendant. Bushman identified defendant at a field show-up as the person who tried to run over him.
Defendant testified in his own behalf. Defendant testified that he had a “history” with Bushman. As part of that history, Bushman had attacked defendant, taking a swing at defendant as defendant sat in his car with the window open. At the time of the incident at the gas station, defendant was afraid of Bushman and feared for his property. Defendant testified that when he pulled into the Arco gas station, Bushman yelled, “There he is,” and swung a pink plastic bag at his windshield, striking the windshield. According to defendant, his windshield “looked like somebody shot a gun, a bullet at [his] window because it had a big chip in the middle, then the little spider. It was a perfect circle, just like a gunshot. About four-inch circle.” Prior to Bushman striking defendant’s windshield, defendant had not done anything to attack Bushman – he did not “steer [his] car towards him intentionally, accelerate, anything like that.”
Defendant admitted that he had suffered convictions for misdemeanor receiving stolen property in 1981, felony grand theft in 1983, selling marijuana or hashish in 1984, felony receiving stolen property in 1985, misdemeanor petty theft in 1990, felony receiving stolen property in 1996, misdemeanor making criminal threats in 2001, felony petty theft with a prior conviction in 2002, and felony first degree burglary in 2002.
Bushman admitted that he had suffered a misdemeanor conviction for receiving stolen property in February, 2006.
Richard Viselli testified that did not see Bushman swing anything at defendant’s windshield. Officer Jung testified that he examined portions of defendant’s vehicle for damage and did not notice a chip in the windshield.
Defendant attempted to leave, but could not due, apparently, to heavy traffic. Defendant rolled up his windows for safety and put his car in reverse to back out. Just as defendant was going to back past Bushman, Bushman attempted to stop defendant from leaving by pushing his bicycle into defendant’s Jeep. Defendant ran over the bicycle. Defendant testified that Bushman then “started doing like a little monster mash dance threatening me and he came out after me.”
Defendant drove forward again at about 20 miles per hour. Defendant attempted to leave, but could not because there was too much traffic on Foothill. Defendant would have had to have stopped, and that would have given “him” a chance to come after defendant. Defendant decided to leave the gas station by another route. As he rounded a pump, he saw Bushman walking in front of him. Defendant did not try to run over defendant at that or any other time.
Defendant testified that when Bushman saw defendant driving around the pumps, Bushman stopped, waved his hands to people at the pumps and said, “Hey, hey, do you see what he’s doing?” As defendant drove past Bushman, Bushman waited until the last second when defendant’s car was close to him and then acted as if he was diving out of the way. Defendant testified that Bushman was “acting,” “pretending,” and “perpetrating a stunt” as he dove out of the way of defendant’s car.
Defendant called Shenk as a witness. Although not entirely clear, Shenk appears to have testified that Bushman swung at and struck defendant’s windshield with a doll. Shenk testified that she had not had her glasses for six months and had a hard time seeing and that she could not be certain about what had happened because she had been diagnosed with “ADHD” and “things get jumbled very badly.”
DISCUSSION
Defendant contends that the trial court erred and violated his constitutional right to present witnesses when it excluded witness testimony about Bushman’s alleged “violent” character, which, defendant argues, was relevant to his and Bushman’s credibility. We hold that the trial court did not abuse its discretion in excluding such testimony.
I. The Trial Court Did Not Abuse Its Discretion When It Excluded Marjorie Clark’s Testimony
A. Standard of Review
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. (See People v. Cole (2004) 33 Cal.4th 1158, 1195 [17 Cal.Rptr.3d 532, 95 P.3d 811]; People v. Lewis (2001) 25 Cal.4th 610, 637 [106 Cal.Rptr.2d 629, 22 P.3d 392].)” (People v. Harrison (2005) 35 Cal.4th 208, 230.)
B. Background
Defense counsel sought to introduce testimony from Marjorie Clark, who purportedly lived in a trailer home in the general vicinity of defendant and Bushman and knew both well. From Clark’s testimony, defense counsel sought to establish that Bushman was an “aggressive, bullying type of individual” – the “neighborhood bully.” Defense counsel represented to the trial court that he would keep Clark on a “short leash” – he intended to ask her if she knew Bushman; if she knew of his reputation in the community; and, if she knew of his reputation, what that reputation was without giving specific examples.
Responding to the trial court’s inquiry about the relevance of the proffered testimony, defense counsel stated, “Well, I am supposed to be allowed to place the victim in his sort of community, not have the jury listen to his testimony without getting an idea who he is and where he’s from. He tried to shy away from what he really is . . . . He is the neighborhood bully. He is the guy that bullies my defendant and everybody else. He is a very aggressive individual. [¶] Part of our theory is in this case he was simply trying to impede the defendant so he could punch him, as he’s done in the past, and I have been tying to get that in. He’s punched him through the window of his own car.”
The trial court then asked defense counsel, “You suggest the evidence of his aggressive character would be sufficient to raise or sufficient to have the jury conclude that’s what this was about?” Defense counsel responded, “I think that, along with proof that he threw items and swung items at the defendant’s car, which is coming up with Miss Shenk, she is the wife and she will be admitting at least that much, and I think those two combined will tell the jury exactly what started this . . . . [¶] When the defendant sees his windshield has been cracked, he backs up. Doesn’t mean he’s trying to run anybody over. And when he comes back around, he has no idea the victim is going to be standing right in the middle of the driveway, blocking it. [¶] Again there’s only one reason he’d be standing there. If he was really afraid, he’s [sic] be hiding behind something. He’s out there yelling and still trying to impede [defendant], and that’s the defense there.”
The prosecutor argued that the introduction of Clark’s testimony would violate Evidence Code section 352 because its “probative value is greatly outweighed by the undue consumption of time and the prejudice.” The prosecutor stated that if Clark were allowed to testify, she would seek to recall Bushman and also to introduce evidence of defendant’s bad character. The prosecutor concluded, “under 352 it’s clearly undue consumption of time and not relevant to what happened on this day.”
After further discussion, the trial court stated, “The bottom line issue in this case, there’s no self-defense, obviously, that would lie. The only thing would be well, did the defendant really try to hit him or did the fellow jump in the way to try to stop the car, I guess? But given what we’ve heard from the witnesses, I’m not at all convinced that the character testimony of the young lady could do anything to shed light on what the eyewitnesses have said and whether they are correct or incorrect about that.”
Defense counsel stated that he was not arguing the admissibility of Clark’s testimony on self-defense. Defense counsel stated that he wanted the evidence because it showed that Bushman attacked defendant as defendant was driving his car. The trial court noted that all of the testimony at that point in the trial showed that one person was doing the chasing, and that was the person in the car. The trial court reasoned that that testimony was “absolutely inconsistent” with the scenario defense counsel was trying to depict with character evidence, “the most tangential type of circumstantial evidence one can imagine.”
The trial court suggested that Clark’s testimony would be admissible if she were to testify to the effect that “Every time this guy, every time he’s out there on the street what I see him do is try to stop [defendant’s] car. He jumps right in front of it and he takes things and beats the heck out of that poor guy’s car. He’s done it at every gas station out there.” Defense counsel stated that Clark would not so testify, but that Shenk would testify that Bushman struck defendant’s windshield and threw a doll at the windshield. The trial court stated that it was “fairly firm” that it would not permit Clark’s proffered testimony, but that it would hear additional argument after Shenk testified. After Shenk testified, defense counsel stated to the trial court, “I believe based on your previous ruling that not enough has changed that I would be able to put Miss Clark on the stand.” The trial court responded, “Correct.”
C. Application of Relevant Legal Principles
Defendant argues that Clark’s proffered testimony was relevant, admissible evidence as explained in People v. Mizchele (1983) 142 Cal.App.3d 686. In that case, the defendant testified he accidentally shot his wife during a “heated and acrimonious” argument after removing a gun from the pocket of her jacket that had been thrown on the floor. (Id. at p. 689.) Defense counsel attempted, unsuccessfully, to introduce evidence of the victim’s past acts of aggression including evidence that she had stabbed her daughter and had pulled a gun on defendant. (Ibid.) Defense counsel argued that the evidence was relevant to show that the defendant took the gun away to protect himself because the victim’s prior aggressive acts caused him to be afraid. (Ibid.)
“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.)
Noting that the victim’s prior aggressive acts were relevant to the principal issue of the trial – whether the defendant fired the gun accidentally – the Court of Appeal held that the trial court erred in excluding such evidence. (People v. Mizchele, supra, 142 Cal.App.3d at pp. 690-691.) The Court of Appeal reasoned, “The evidence before the jury, that defendant had knowingly retrieved the gun from the pocket of the jacket on the floor with an apparent purpose to use it as a weapon, tended strongly to discredit the testimony of his intent not to use it. Evidence tending to establish a purpose other than to use it as such a weapon would, if believed by the jury, manifestly support his credibility and therefore be relevant under Evidence Code section 210.” (Id. at p. 690.) The court held that Evidence Code sections 1100 , 1101 , and 1103 were not barriers to use of the proffered testimony. (Id. at pp. 690-691.)
Evidence Code section 1100 provides: “Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person’s conduct) is admissible to prove a person's character or a trait of his character.”
Evidence Code section 1101 provides: “(a) 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. “(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. “(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Evidence Code section 1103, subdivision (a)(1) provides: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Defendant argues that credibility is in issue in this case as it was in People v. Mizchele, supra, 142 Cal.App.3d 686. According to defendant, “Clark’s testimony about Bushman’s character as an aggressive bully would have supported the credibility of [defendant’s] testimony that he was trying to maneuver to escape Bushman, and could also have been used to attack Bushman’s credibility by showing a motive to lie about the incident in order to get [appellant] in trouble with the police and later to get him convicted and imprisoned for a long period.”
Defendant contends that Clark’s testimony also could have affected the credence given the Visellis’ testimony. Although the Visellis’ appeared to be independent witnesses, defendant asserts, their sympathies lay with Bushman – they waited with him for the police after twice calling 911. Defendant speculates that the Visellis’ supposed sympathy for Bushman “may have been influenced by what Bushman may have told them about [defendant] while they were waiting with Bushman for the police to arrive.” Clark’s proffered testimony, defendant argues, “would have balanced the sympathy shown by the Visellis.”
Unlike the proposed testimony in People v. Mizchele, supra, 142 Cal.App.3d 686, Clark’s proffered testimony would not have provided a theory that tended to negate the apparent criminal nature of the defendant’s actions. In People v. Mizchele, testimony about the victim’s prior aggressive acts provided a reason why the defendant would retrieve the victim’s gun from the victim’s jacket other than to intentionally shoot the victim. (Id. at p. 690.) Here, Clark’s proffered testimony that defendant was aggressive and a bully does not provide an alternative theory about why defendant drove his car directly at Bushman. That is, if defendant were afraid of Bushman due to Bushman’s prior aggressive acts and his bullying nature, defendant would have driven away from, not towards Bushman. Or, if Bushman had been as characterized, defendant might have had a motive in trying to injure him. Defendant does not provide any authority for the proposition that evidence that a victim is aggressive and a bully is admissible to counterbalance sympathy shown to the victim by an apparent independent witness. Clark’s proposed testimony was not relevant to any issue tendered by defendant in this case, and the trial court did not abuse its discretion in excluding that evidence.
II. Court Security Fees
Respondent contends that the trial court erred in imposing on defendant a single $20 court security fee pursuant to section 1465.8, subdivision (a)(1) rather than a $20 court security fee as to each of defendant’s three convictions. We agree.
Section 1465.8, subdivision (a)(1) provides, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
In People v. Schoeb (2005) 132 Cal.App.4th 861, the Court of Appeal construed the language in section 1465.8, subdivision (a)(1). The court of appeal held “we conclude section 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense.’ Thus, defendant’s argument that only a single fee may be imposed in these five casescannot be squared with the plain language of section 1465.8.” (Id. at pp. 865-866.) We agree with the construction given the language in section 1465.8, subdivision (a)(1) by the court of appeal in People v. Schoeb.
Here, defendant suffered three convictions for assault with a deadly weapon. Accordingly, the trial court should have imposed on defendant three $20 court security fees pursuant to section 1465.8, subdivision (a)(1) for a total $60 in court security fees. (People v. Schoeb, supra, 132 Cal.App.4th at pp. 865-866.) We order the abstract of judgment modified to include a $20 court security fee for each of defendant’s three convictions.
DISPOSITION
The judgment of conviction is affirmed. The abstract of judgment is ordered modified to reflect a total of $60 in court security fees.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.