Opinion
G052047
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN VON SCHERT, Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF1195) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Steven Von Schert of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); all further undesignated statutory references are to the Penal Code), and misdemeanor battery (§ 242). The jury found true an allegation defendant personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)). The court determined defendant had served a prior prison term (§ 667.5, subd. (b)), and imposed a six-year sentence. Defendant challenges two evidentiary rulings. We find no error and affirm.
FACTS
1. Background
In 2013, Chris Rados rented rooms in his Tustin home to defendant, a former professional boxer, and Thomas Tobin and his wife, Maryluu. Katherine Moiseoff slept on Rados' couch. Defendant stopped paying his rent at some point. Rados and Moiseoff wanted him to move, but defendant was not cooperating.
a. November 10
On the night of November 10, Jacqueline "Jax" Shirley brought defendant some methamphetamine. Around midnight, Tobin saw Shirley and defendant in defendant's room. Minutes later, Tobin heard a scream and argument, and he saw defendant and Shirley in the hall.
Defendant walked into the kitchen. Shirley appeared frightened, and one side of her face was swollen. Tobin pushed Shirley out of the house and told defendant to "cool down." Tobin did not see either party with a knife, and defendant appeared blank but unhurt.
Rados heard defendant and Shirley argue, and Shirley yell at defendant to "stop it," or "stop hitting me." Rados got up to investigate and saw Shirley in the hallway. She was backing away from defendant's room. Shirley told Rados she and defendant had been fighting.
The next morning, Shirley was admitted into the hospital with a swollen and lacerated lip, and a broken nose and right eye socket. Although not immediately forthcoming with police, Shirley eventually identified defendant as her assailant. Medical testimony and photographs substantiated Shirley's injuries.
b. December 8
On December 8, Rados and Moiseoff were entertaining a girl named Deby and a guy named Danny in the living room while defendant and Tobin stayed in their rooms. At one point, defendant emerged from his room and went into the kitchen. Either Danny or Moiseoff made a rude comment to defendant. Defendant called Moiseoff and Deby "bitches," and went back into his room.
Within minutes, defendant returned to the living room. He and Danny got into a shouting match that led to a physical altercation between them and a general melee involving everyone in the house except Tobin. Rados said Danny hit defendant in the back of the head and defendant punched Danny in return.
Tobin took pictures of Danny's face and called police. Tobin told the police dispatcher there had been a fight about rent and defendant was "trying to beat everybody up." By the time the police arrived, Danny was gone. After interviewing everyone present, defendant was arrested.
c. Additional Trial Testimony
At trial, Tobin testified he had only known Shirley for about six months. Although Shirley had been convicted of several weapons-related offenses (possession of brass knuckles, a switchblade, and a dirk or dagger), Tobin had never seen her with a weapon. Tobin testified Shirley "did what she had to [to] protect herself" because she was homeless, but she was not the kind of person who would start a fight.
Rados, who had been convicted of felony mayhem after he bit off part of a late-paying tenant's nose, said he did not know Shirley well and was unaware of her criminal record. Rados testified Shirley did not have a violent reputation.
Moiseoff, who had been previously convicted of prostitution and twice convicted of assault on a peace officer, did not believe Shirley to be violent, nor had she seen Shirley with a weapon. Moiseoff was unaware of Shirley's prior weapons-related convictions.
On the other hand, Moiseoff feared defendant because she had seen him "in action." Plus, defendant had punched a number of holes in Rados's walls, and he had twice become verbally abusive and aggressive with Moiseoff when she complained about him arriving home at 3:00 a.m. Based on her experience, defendant seemed to be a violent man.
Tobin and Rados were asked if they were aware of threats defendant's brother had made against anyone who testified. Tobin said a friend and neighbor mentioned something about defendant's brother threatening to hurt anyone who testified, but he thought the friend might be joking.
The mutual friend testified that he had not spoken to defendant's brother in 10 years, and he attributed the threat rumor to a woman named Brenda.
On the other hand, Tobin feared defendant because defendant "likes to solve things, by being brutal with people." Tobin testified defendant threatened to take revenge on his daughter and ex-wife for testifying against him. Tobin said he did not know defendant's brother. Nevertheless, he had heard defendant's brother was "more psycho" than defendant, which caused Tobin some anxiety.
Rados testified there were rumors defendant's brother said anyone who testified against defendant would be a rat, but Rados testified he was not afraid.
d. Defense
Defendant had been a professional boxer for 10 years before these incidents. In 2010, he pleaded guilty to felony assault after he hit his daughter.
Defendant referred to Shirley as "Jax the Knife." He testified Shirley had shown him her proficiency with a butterfly knife the first time he met her.
On November 10, Shirley came to defendant's room to drop off some crystal methamphetamine. Defendant decided to confront Shirley because she had drugged and raped his girlfriend. When he tried to talk about it, Shirley pulled out a knife. She threatened to cut defendant, and lunged at him. Defendant said he jumped aside and punched Shirley in the face, which knocked her to the ground. However, she tried to stab him again, so he punched her face twice more. Defendant said he did not immediately tell police about Shirley's knife and needing to defend himself because he did not "have the utmost confidence in the Tustin Police Department."
With respect to December 8, defendant testified Rados had been hounding defendant to leave his house for six months, and they had 12 to 14 altercations about it. Defendant testified Danny was big and imposing. That night, he and Danny were arguing over the rent when Danny took two swings at him. Because of his training, defendant was able to duck both punches, and punch Danny in the face. Rados also hit defendant.
e. Rebuttal
After defendant testified Shirley had a knife and he acted in self-defense, the prosecution introduced the recording of defendant's police interview. In the recording, defendant told the police he had no idea why Shirley would accuse him of assault, and he claimed she was lying. He also accused Shirley of raping his girlfriend. He did not mention acting in self-defense, or that Shirley had a knife.
DISCUSSION
1. Witness Intimidation
After opening statements, the prosecutor told the court Rados, Tobin, and Moiseoff "were changing some of their statements" because "they had received threats," and the source of the threats was defendant's brother. For instance, Moiseoff reported rumors defendant's brother, who "is crazier than the defendant," was threatening to inflict "consequences" on anyone who testified. As a result, these witnesses told the prosecutor their testimony would likely be inconsistent with their pretrial statements.
The prosecutor sought to admit evidence the witnesses were threatened and afraid. Defense counsel objected on grounds of hearsay, lack of foundation, and Evidence Code section 352.
Defendant told the court he had not communicated with his brother in over 20 years, and he did not know anything about the threats. However, the court found the threat evidence "extremely probative" with respect to witness credibility, motive, or bias. The court recognized the potential for prejudice posed by the evidence. Consequently, the court admonished the prosecutor to keep the questioning brief and general.
The court also noted the prosecutor's failure to directly link the threats to defendant meant the evidence was not admissible for consciousness of guilt. The parties did not cite to anything in the record that shows whether the court gave a limiting instruction with respect to this evidence, and our independent review of the record sheds no light on the question. Nevertheless, Evidence Code section 355 places the burden to request such an instruction on the parties, and neither party made such a request. --------
On appeal, defendant argues the court abused its discretion and violated his constitutional right to due process and a fair trial by admitting the threats evidence. Generally speaking, a "trial court's exercise of discretion under [Evidence Code] section 352 will be upheld on appeal unless the court abused its discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner. [Citations.]" (People v. Thomas (2012) 53 Cal.4th 771, 806.) This particular ruling was well within the court's discretion.
Evidence Code section 780 permits the jury to consider "any matter that has any tendency in reason to prove or disprove the truthfulness" of a witness's testimony. As the California Supreme court has recognized, "'[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]' [Citations.]" (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.)
Defendant repeatedly asserts there was no evidence he orchestrated the threats. But, third party threats are relevant to a witness's credibility "whether or not the threat is directly linked to the defendant. [Citations.]" (Mendoza, supra, 52 Cal.4th at p. 1084.) That is because a witness's demeanor while testifying is always relevant to his or her credibility. (People v. Lopez (2013) 56 Cal.4th 1028, 1064; overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; see CALCRIM No. 226.)
In this case, the third party threats evidence was relevant and highly probative of the witnesses' credibility. When asked, Tobin and Rados stated they were aware of the threats defendant's brother made against anyone who testified, but they expressed a more pervasive fear of defendant himself. As stated above, the jury was entitled to view the witness's demeanor while testifying in addition to hearing specific responses to questions. In our view, the court correctly admitted the threats evidence, and took the appropriate steps to minimize any potential prejudice. 2. Prior Inconsistent Statements
Before trial, the prosecution moved to exclude any reference to the fact defendant or others may have been under the impression Shirley sexually assaulted defendant's girlfriend. The prosecutor stated he was not going to rely on this evidence to prove motive.
Defense counsel submitted on the issue. She planned to argue self-defense and was "not planning on talking about [the sexual assault] in opening or using it at this point."
The court granted the prosecution's motion subject to any later motion by the parties. At the time, the prosecutor indicated he would seek to admit a sanitized version of defendant's recorded police interview would be presented that included defendant's denials of the crime, but excluded any reference to the sexual assault.
After defendant testified Shirley had a knife and he reacted in self-defense, the prosecution moved to introduce the entirety of defendant's recorded interview for impeachment and as evidence of motive. Defendant objected on Evidence Code section 352 grounds. The court lamented the late introduction of this evidence, but concluded the probative value of the evidence outweighed its potential for prejudice.
Defendant argues the court abused its discretion and violated his constitutional rights by admitting evidence of the sexual assault. Not so.
"Although a defendant cannot be compelled to be a witness against himself, if he takes the stand and denies the evidence presented against him, the permissible scope of cross-examination is '"very wide."' [Citation.]" (People v. Hawthorne (2009) 46 Cal.4th 67, 99-100, disapproved on another point in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.) Moreover, when the defendant chooses to testify, "his character as a witness may be impeached in the same manner as any other witness. [Citations.]" (People v. Wagner (1975) 13 Cal.3d 612, 618.) As has been previously stated, "'[t]here are . . . exceptionally few caveats to the proposition that the right to introduce evidence necessarily implicates the responsibility to permit it to be fairly tested.'" (People v. Seminoff (2008) 159 Cal.App.4th 518, 527.)
When first questioned, defendant told the police Shirley had drugged and raped his girlfriend so he had reason to hit her. However, he also flatly denied causing Shirley's injuries, and he called her a liar for making the accusations. By contrast, defendant testified Shirley attacked him with a knife, and forced him to defend himself when he mentioned the sexual assault. When a testifying defendant gives inconsistent explanations of his role in the crime, the prosecution is entitled to use those statements and expose the inconsistencies. (People v. Cartwright (1980) 107 Cal.App.3d 402, 415 [when the defendant testifies inconsistently with evidence presented by the prosecution he or she may be examined with respect to facts or denials implied in his testimony].) Thus, the court acted well within its discretion by admitting evidence of the sexual assault for impeachment.
Defendant also asserts counsel was ineffective for not recalling Rados and Tobin for the purpose of cross-examination about the sexual assault. However, when the record on appeal does not explain why counsel chose to act as he or she did, we presume defense counsel's actions fall within the broad range of reasonableness, and afford "great deference to counsel's tactical decisions." (People v. Lewis (2001) 25 Cal.4th 610, 674.)
In this case, Tobin and Rados had only known Shirley for about six months, and they had seen her just a few times. Both of them were unaware of her criminal record, and neither had seen her carrying a weapon or starting a fight. Moreover, there is no evidence they were aware of an alleged sexual assault on defendant's girlfriend. Under these circumstances, counsel appears to have made a tactical decision to forgo further cross-examination based on the witnesses' earlier testimony.
3. Prejudice
Finally, even assuming the court committed both asserted evidentiary errors, there is no basis for reversal. The evidence against defendant was overwhelming. Although neither victim testified, multiple witnesses saw both crimes and substantiated the victims' injuries. They also testified defendant was the aggressor in both cases. In both incidents, a verbal argument prompted the former boxer to punch someone in the face. Meanwhile defendant's incredible testimony and inconsistent statements did little to bolster his claims of self-defense. In our view, both asserted evidentiary errors were harmless beyond a reasonable doubt whether considered individually or collectively (Chapman v. California (1967) 386 U.S. 18, 26; People v. Rogers (2006) 39 Cal.4th 826, 911 [each error was harmless individually, or collectively]), and defendant received a fair trial. (People v. Partida (2005) 37 Cal.4th 428, 439.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.