Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. GA049940
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. GA049940. Teri Schwartz, Judge. Affirmed.
Geragos & Geragos, Mark J. Geragos; Law Offices of Steven Graff Levine and Steven Graff Levine for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
Brett Lee Williams appeals from the judgment following his conviction for murdering his ex-wife. We affirm.
RUBIN, J.
FACTS AND PROCEEDINGS
Johanna Williams shared custody of her two children, A. and B., with their father and her ex-husband, appellant Brett Lee Williams. One day in June 2002,appellant picked up the children from preschool for the weekend. Angry with Johanna because she had not left extra clothing at the preschool for the children’s use over the weekend, appellant drove to Johanna’s condominium with the youngsters in tow.
When appellant arrived at Johanna’s home, he confronted her and they began to argue. During the argument, one of Johanna’s neighbors heard Johanna pleading for help, saying, “He’s been beating me.” Johanna also cried out, “He has a gun. He’s going to shoot me.” A second neighbor, Anne Koerber, also heard Johanna cry out that appellant had a gun and was beating her. Looking outside and seeing Johanna lying on the ground covered in blood, Koerber called 911.
A third neighbor, Catherine Beck, also heard the fight. Beck went outside and saw Johanna bleeding from her head. Johanna told Beck appellant had beaten her. Turning back to her condominium to call 911, Beck saw appellant and the children. Without letting on that she had seen or talked to Johanna, Beck greeted appellant and then followed him and the children. As they passed by the open door to Anne Koerber’s condominium, Beck pushed the children inside. Shutting the door behind her, she heard six gunshots, at least one of which pierced the door and hit her foot. When Koerber asked A. what had happened, A. said her father “was beating her [mother] with a shoe.”
Sheriff’s Deputies Steve Bonas and Steven Katz arrived on the scene. Finding Johanna outside on the ground, Deputy Bonas asked her who had attacked her. Slipping in and out of consciousness, she answered, “He shot me.” Johanna died shortly afterward. She had been shot four times and had suffered blunt force trauma injuries to her head and face that were consistent with being hit by a gun. Several hours later, appellant turned himself in to Pasadena police. He did not complain of any injuries and was not visibly hurt when the police arrested him, but his clothing had dried bloodstains.
The People charged appellant with murdering Johanna and with related offenses involving child endangerment and assault. The jury convicted him on all counts and found Johanna’s murder to be in the second degree. The court sentenced appellant to state prison for 59 years to life. This appeal followed.
DISCUSSION
1. People’s Midtrial Gunshot Trajectory Tests
The gist of appellant’s defense at trial was Johanna, not he, was armed and fired the first shots, one of which went through Koerber’s condominium door and hit Beck in the foot. After Johanna began shooting, appellant claimed, he tried to disarm her and during their struggle she was fatally shot.
When deputies arrived at the crime scene, they found Johanna lying on the grass in front of condominiums 2A and 2B. The People’s forensic firearms examiner, James Carroll, opined in the People’s case-in-chief that the bullet that pierced Koerber’s door was not likely fired from Johanna’s position on the grass in front of condominiums 2A and 2B because deputies recovered one bullet cartridge from a spot too far away from the units for the cartridge to have traveled the distance between Johanna’s position and the cartridge’s landing spot. The expert’s opinion thus contradicted appellant’s claim that Johanna fired the first shot.
During appellant’s cross-examination of Carroll, he testified he and defense counsel had taken what counsel called a “field trip” to visit Johanna’s condominium complex earlier that same day. While there, defense counsel had asked Carroll to assume Johanna had fired a gun while sitting or lying down in front of condominiums 2A and 2B. Assuming what Carroll conceded was a reasonable firing height of about 18 to 20 inches above the ground and taking into account the bullet hole five inches above the ground in Koerber’s door, counsel had asked Carroll to calculate a bullet’s resting place inside Koerber’s condominium. Carroll stated the bullet would land about two feet from the door. And indeed, Carroll acknowledged, a deputy had recovered a bullet inside Koerber’s unit about two feet from the door.
On redirect, Carroll testified his calculation of the bullet’s landing spot assumed the gun was fired in front of condominiums 2A and 2B – an assumption he made at defense counsel’s request. He noted, however, he did not know from where the gun was fired because he had never examined the bullet’s trajectory through the door. Hence, the shooter could have been standing or sitting, depending on the angle of the bullet’s path through the door.
On recross, defense counsel immediately threw down the gauntlet. He asked Carroll: “Q. Do you want to take a field trip right now – [¶] [Prosecutor]: Objection – [¶] Q. – And I’ll bet you if it goes right through – [¶] [Court]: All right. I’m going to sustain my own objection.” Thus ended Carroll’s testimony, and he was excused.
That evening after the day’s testimony ended, the prosecutor and Carroll visited the condominium complex to perform a trajectory analysis. The next day before testimony resumed in front of the jury, the prosecutor shared the analysis with the court and defense counsel. (Defense counsel attended part of the previous night’s testing, but left early claiming the expert was misperforming the test.) Using a trajectory probe, Carroll calculated the bullet’s path through the door required a firing height of almost six and one-half feet above the ground if shot from Johanna’s position; someone sitting or lying at Johanna’s spot could not have fired the bullet into Koerber’s door.
Appellant objected to the new evidence. He argued the law did not permit the prosecution to perform new tests in the middle of trial, hoping to repair damage to the People’s case inflicted by the defense’s cross-examination of a prosecution witness. The court overruled appellant’s objection. It deemed defense counsel’s question whether Carroll “want[ed] to go on a field trip right now” as “basically . . . an invitation” to do so. Recognizing the defense needed time to prepare for the new evidence and possibly do more testing of its own, the court invited appellant to request a continuance or, in lieu of that, move for a mistrial. Arguing that the new evidence unfairly forced him to make a choice that he ought not need to make at all, appellant requested a continuance of at least two weeks, which the court granted. The trial recessed on January 28, 2005, and resumed on February 16, 2005.
During the continuance, the prosecution performed more tests, but appellant does not advance separate arguments about those additional matters. He focuses instead on the trajectory analysis. The additional examinations involved: (1) blood on Johanna’s sandals, and (2) gunshot residue on her pants.
Appellant contends the court erred in admitting the People’s new trajectory evidence because it did an end run around the People’s discovery obligations. Generally speaking, the discovery statutes governing criminal trials require the prosecution to give to the defense at least 30 days before trial much of the evidence supporting the People’s case-in-chief. (Pen. Code, §§ 1054.1, 1054.7) The purpose of pretrial discovery is several-fold, including finding the truth by encouraging parties to prepare for trial and giving them time to answer the other side’s evidence, and promoting efficient trials by minimizing trial delays undisturbed by needless interruptions or postponements. (Pen. Code, § 1054.) Appellant contends the midtrial investigation and testing frustrated what pretrial discovery in this case tried to achieve. We disagree.
We begin by noting that Carroll’s testimony was not true rebuttal evidence because the prosecution was still presenting its case-in-chief when it called Carroll to retake the stand to testify about his previous evening’s trajectory analysis. (Pen. Code, § 1093, subd. (c) [prosecution may offer rebuttal evidence after defense rests].) Nevertheless, a fruitful analysis flows from framing Carroll’s testimony as functionally akin to rebuttal evidence. The prosecution must ordinarily restrict its rebuttal evidence to answering new evidence from the defense or responding to matters that are not implicit in the defendant’s not guilty plea. (People v. Carter (1957) 48 Cal.2d 737, 753-754 (Carter); 21 Cal.Jur.3d (2001) Criminal Law: Trial, § 398.) Here, the defense theory that Johanna had fired the first shot and died in a struggle over the gun caught the prosecution flat-footed, forcing the prosecution to play, in the court’s words, “catch up.” The court itself described appellant’s opening argument announcing the theory as “devastating.” The prosecution’s midtrial testing was not, therefore, sandbagging by the prosecutor holding back evidence it should have offered in its case-in-chief, but was instead evidence it needed to shore up its weakened case. (Accord, People v. Young (2005) 34 Cal.4th 1149, 1199 [“Testimony that repeats or fortifies a part of the prosecution’s case that has been impeached by defense evidence may properly be admitted in rebuttal”]; People v. DeSantis (1992) 2 Cal.4th 1198, 1231-1233 [in order to rebut defendant’s unanticipated testimony, court permitted testimony from witness prosecutor had interviewed during time period People’s case-in-chief was presented].)
Appellant contends the People bear the risk of being outmaneuvered by skillful defense counsel who sees in the People’s evidence a defense the prosecutor did not anticipate. (See, e.g., People v. Batts (2003) 30 Cal.4th 660 [if prosecution is unprepared or makes mistakes at trial, defendant entitled to reap the benefits, even if those benefits include acquittal]; Sons v. Superior Court (2004) 125 Cal.App.4th 110, 118, 120.) He asserts his theory that Johanna fired the first shot relied solely on facts within the People’s case-in-chief; what defense counsel did was to put the pieces of the evidentiary puzzle together to create a picture of Johanna’s death different from the prosecution’s theory. He asserts he did not use any new evidence or matters entitling the People to offer rebuttal evidence.
Appellant is mistaken in characterizing his defense as confined solely to the prosecution’s facts, because defense counsel injected himself into the equation with an argumentative question about taking a field trip that was tantamount to counsel testifying himself. It was irrelevant whether witness Carroll “want[ed] to take a field trip” because his wants were beside the point – what mattered were the results of forensic tests actually performed. But by offering to “bet” what the results from such a field trip would be, counsel was implying in front of the jury that he knew the results would be favorable, or else it would be a foolhardy wager. Counsel’s bet offered “new evidence” that the prosecution was entitled to answer. To not accept defense counsel’s wager would have left the jury with the impression that the prosecutor knew the People would lose the bet, i.e., that further tests would support the defense’s trajectory theory. It was thus a fair response by the prosecution to pick up the gauntlet defense counsel threw down by taking the field trip counsel had suggested. (Accord, People v. Bunyard (1988) 45 Cal.3d 1189, 1210-1212 [prosecutor allowed to offer records uncovered during defense’s case in order to answer weakness in prosecution’s case]; People v. Gates (1987) 43 Cal.3d 1168, 1177-1179, 1181-1184 [during defense’s cross examination of prosecution witness in murder case, defense suggested victim was killed for a reason the prosecutor did not anticipate; court allowed prosecutor to offer rebuttal testimony to answer defense’s alternative explanation for murder; court rejected defendant’s claim that such testimony should have been introduced during People’s case-in-chief].)
Allowing the midtrial trajectory evidence did not violate acknowledged policy concerns about improper rebuttal evidence. In Carter, supra, 48 Cal.2d 737, our Supreme Court identified those concerns. In that case, police recovered a murder victim’s wallet from the same place where they found the suspected murder weapon and a hat containing some strands of the defendant’s hair. The prosecution did not use the hat in its case-in-chief, but waited until its rebuttal to offer the hat into evidence. (Id. at p. 753.) The prosecution argued the hat was proper rebuttal evidence because the defendant had testified he had not been to the spot where the murder weapon and victim’s wallet were found, but the hat showed otherwise. The Supreme Court disagreed. It explained that the defendant’s not guilty plea implied he had not been to the place the items were found, and thus the prosecutor needed to prove the defendant had visited the location. The hat, which tended to show he had visited the spot, therefore needed to be part of the prosecution’s case-in-chief. (Id. at pp. 753-754.)
In limiting the scope of rebuttal evidence, the Carter court explained the reasons for the limits:
“The purpose of the restriction [on rebuttal evidence] is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence.”
(Carter, supra, 48 Cal.2d at p. 753.)
The trial court’s admission of the trajectory testing did not violate any of the concerns Carter identified. First, the testing did not interfere with the orderly presentation of evidence because the prosecution had not rested. Indeed, Carroll had been the last witness to testify, making it easy to recall him seamlessly to the stand. Second, the testing did not unfairly surprise appellant because it did not deny him the time to prepare a response by conducting his own tests. Finally, the testing did not involve the prosecution manipulating the jury with theatrics by dramatically introducing evidence late in the trial. To the contrary, the testing was the prosecution’s scrambling to salvage its case against a devastating defense and an express challenge by defense counsel.
After briefing ended in this appeal, our Supreme Court issued its decision in People v. DePriest (2007) 42 Cal.4th 1 (DePriest), a murder case that echoes this appeal in some ways. After the jury was sworn in DePriest, but before opening argument, defendant DePriest notified the prosecution of his intention to submit evidence that someone else committed the murder. (Id. at pp. 36-37.) The defendant said he planned to offer numerous shoe prints police had overlooked at the murder scene that did not match the defendant’s shoes. The evening after the defendant notified the prosecutor of the unmatched prints, a prosecution expert reexamined evidence from the crime scene and found two previously unidentified prints from the defendant’s shoes. Arguing the prosecutor’s new prints violated the People’s discovery obligation to turn over all evidence at least 30 days before trial, the defendant objected to admission of the prosecutor’s new prints into evidence. In support of the prints’ admissibility, the prosecutor “insisted he had no choice but to reexamine the crime scene debris when counsel suggested that it contained numerous exculpatory shoe prints.” (Id. at p. 37.) The trial court allowed the prosecutor’s new prints into evidence.
2. Continuance
In deciding Carroll could testify about the new trajectory evidence, the court granted appellant’s request for a continuance to prepare his response to that evidence. Appellant contends the court’s offer to let him choose between a continuance or mistrial put to him an unfair choice in which a continuance was merely the less bad decision. According to appellant, the court should never have put him in the position of his needing to make a choice at all. He contends the principal harm from a continuance was to give jurors time to mull over the prosecution’s evidence and get appellant’s seeming guilt fixed in their minds before he had his chance to put on his defense.
In fact, earlier in the trial appellant had moved for mistrial after the prosecutor improperly questioned a deputy sheriff about a hair found on the suspected murder weapon. Appellant’s earlier motion suggests a mistrial was not such a terrible outcome when it suited his interests.
Granting a midtrial continuance is committed to the trial court’s discretion. (People v. Santamaria (1991) 229 Cal.App.3d 269, 277.) Exercising discretion typically involves balancing competing legitimate interests. In this case, we see those interests as including the societal interest in gathering evidence to seek the truth versus appellant’s constitutional right to a speedy trial, which encompasses the right to a trial without needless delay. No hard and fast rules or bright lines exist for measuring improper delay in a trial that was already underway. (See id. at pp. 272, 277, 281 [inherently prejudicial to take 11-day adjournment during deliberations]; People v. Katzman (1968) 258 Cal.App.2d 777, 789-790 disapproved on other grounds in Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 777-790 & fn. 11 [10-day continuance to permit judge to attend conference not good cause]; People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 20-21 [defendant prejudiced by three-week delay after People rested to let assigned judge return to “home court”]; U.S. v. Hay (9th Cir. 1997) 122 F.3d 1233, 1236 [48-day delay in case involving complex and technical evidence from close of evidence to start of closing arguments was inherently prejudicial without needing to show actual prejudice]; but see People v. Gray (2005) 37 Cal.4th 168, 226-227 [338-day delay between guilt and penalty phases not prejudicial].) It stands to reason, however, that because the trial court did not err in admitting the trajectory evidence, it did not err in giving appellant sufficient time to prepare his response to that evidence. To the contrary, appellant would have a colorable argument of legal error if he had requested a continuance that the court denied. (See People v. Young, supra, 34 Cal.4th at p. 1209; but see DePriest, supra, 42 Cal.4th at pp. 37-38.) Hence, we find the court did not abuse its discretion in permitting a continuance.
3. Alleged Prosecutorial Misconduct
a. Hair on Gun
The day of the shooting, Sheriff’s Deputy Stokes went to the home of appellant’s mother to look for a gun believed to be the murder weapon. He found a semi-automatic with dried blood on it, which he noted on his police report. At trial, he also testified he found a hair on the gun’s slide-mechanism. He did not, however, keep the hair nor record its existence in his police report. Moreover, he did not tell the prosecutor about the hair until the lunch hour on the afternoon that he testified.
After lunch, the trial’s afternoon session began, picking up where the trial had adjourned before lunch with a witness other than Deputy Stokes. Shortly after 3:00 p.m., the prosecutor called Deputy Stokes to the stand. Before asking her first question, the prosecutor requested a sidebar, where she told the court she had learned from Deputy Stokes during lunch about the hair he claimed he saw on the gun. She said she had intended to tell defense counsel about the hair before the afternoon session began, but forgot when other trial matters distracted her. Defense counsel objected to the deputy’s testifying about the hair. The court replied:
“Because we have a jury here, so at this time let’s do this, let’s start with the direct. And before you go any further, we will talk about it some more. Okay? [¶] [Prosecutor]: Okay.”
The prosecutor began her direct examination of Deputy Stokes. He testified he got on duty a few hours after the shooting. His first assignment that evening was to go to the home of appellant’s mother to retrieve a gun believed to be there. He testified about finding the gun as follows:
“Q. When you looked at the gun when you first took it off the refrigerator, did you notice anything about it? [¶] A. Yes, I did. [¶] Q. And what did you notice? [¶] A. I noticed there appeared to be dry blood on the slide of the gun and there was hair also.”
The prosecutor then handed the gun to Deputy Stokes. She asked:
“Q. Could you show the jury where – when you say at the slide and the handle, where did you see this, what appeared to be blood. [¶] A. I saw what appeared to be blood on this area here and on this area and on the handle around here. And I also saw like hair sticking out of this area here.”
At this point, defense counsel asked to approach for a sidebar. The court replied, “Let’s just keep going.” The prosecutor then confirmed Deputy Stokes had written a report about the gun.
“Q. Now, you wrote a report with regard to this; is that correct? [¶] A. Yes, ma’am. [¶] Q. And you’ve had a chance to review that report today obviously? [¶] A. Yes. [¶] Q. Did you notice anything missing from your report? [¶] A. Yes. [¶] Q. And what was that? [¶] A. I didn’t put in there about the hair. I left that out.”
Defense counsel again interjected, asking the court, “Do I get to be heard on this?” The court replied, “Eventually, yes.” The court ordered the prosecutor to continue. She asked Deputy Stokes, “Is there a reason that you left that out?” He answered, “Just tired and forgot.” At that point, the prosecutor announced she had no more questions.
The court excused the jurors and ordered counsel to a sidebar. Directing its remarks to the prosecutor, the court said:
“[Court]: I was under the impression that we weren’t going to go into this area, but it appears that Ms. Cady, you elicited this information. [¶] [Prosecutor]: I totally misunderstood the court’s order. . . . I apologize. I had thought the court meant I could do my full direct and before we got to cross that you wanted to – so I apologize. [¶] [Court]: I didn’t intend for that to happen. [¶] [Prosecutor]: I misunderstood. [¶] [Court]: What I intended to have happen was to have you inquire on direct and then I thought we would be able to take a break and discuss it. So the record should reflect we were at the side bar for a very brief period of time. That was my intention. [¶] It may not have been made clear, but once the testimony was elicited, Mr. Geragos, I didn’t feel it was appropriate to highlight what you were objecting to, although your laughter certainly let it be known to the jury that there was something unusual going on here. But I didn’t choose to approach the bench when you requested because the cat was out of the bag. . . . I didn’t think that we would get to any information about the hair, but then there was a second bit of testimony about where it was found.”
Appellant moved for a mistrial. He argued the previously undisclosed hair prejudiced appellant’s defense. Appellant had intended to rely on his daughter’s testimony that he had hit Johanna in the head with a shoe, not a gun, before the shooting. The hair on the gun weakened the defense by supporting the prosecution’s theory that appellant had the gun throughout his fight with Johanna and used it to hit her on her head, which was the source of the hair. The court denied the motion for mistrial.
Appellant contends the prosecutor committed misconduct because she intentionally elicited from Deputy Stokes inadmissible testimony about the hair. (People v. Bonin (1988) 46 Cal.3d 659, 689 overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823 fn.1 [misconduct to intentionally elicit inadmissible testimony].) The trial court implicitly found otherwise because it did not find the prosecutor willfully disobeyed the court’s order. The court had intended that the prosecutor not ask the deputy about the hair until the court and counsel had the time to discuss the evidence at a time that did not inconvenience the jury. But, when the court summoned counsel to a sidebar after Deputy Stokes mentioned the hair, the court noted its instruction to the prosecutor not to ask about the hair “may not have been made clear” because, the court seemingly suggested, the earlier sidebar was “very brief.”
In any case, even if we rejected the trial court’s factual finding that the prosecutor did not willfully disobey the court, we find appellant did not preserve a prosecutorial misconduct claim for appeal. To preserve such a claim, a defendant must cite to the trial court the purported misconduct when it occurs. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) Here, however, appellant did not assert the prosecutor committed misconduct when the deputy mentioned the hair; appellant instead objected to the hair’s admission after its belated discovery as violating the People’s discovery obligations.
b. Defense Counsel’s Invitation to Take a Field Trip
In rebuttal during closing argument, the prosecutor mentioned defense counsel’s challenge to the People’s forensic expert to visit the crime scene for a trajectory analysis. She said:
“So when you look at all of the evidence, the evidence clearly shows that the only person who had a gun back on June 10th was the defendant. However, when Mr. Geragos suggested that Miss Williams was the person who had the gun we, of course, went out. [¶] . . . And so when Mr. Geragos brought it up and said how about if we go on a field trip, we went on a field trip because we’re not afraid of the truth. . . . [¶] . . . [¶] So we went out to the scene to conduct the testing that Mr. Geragos requested. And what does the testing show? The testing shows that the trajectory path of that bullet, depending on the location of how open or closed that door was, very easily the defendant could have shot that gun . . . .”
Appellant contends the prosecutor’s argument was misconduct because she suggested the defense had requested the midtrial testing. The contention misconstrues the prosecutor’s remarks. She did not assert defense counsel requested the testing; she said defense counsel suggested a field trip. The trip’s purpose was to give the forensic examiner the chance to answer defense counsel’s challenge in which he asked the examiner, “Do you want to take a field trip right now . . . and I’ll bet you if it goes right through . . . .” The prosecutor’s narration fairly described the field trip’s genesis. There was no misconduct.
c. Bloody Shirt
The prosecutor noted during closing argument that the shirt in which appellant was arrested appeared to have diluted or leached blood at its bottom as if appellant had tried to wash out the stain while standing over a sink. Appellant contends the prosecutor misstated the evidence because the People’s criminalist testified he tested the shirt for blood by swabbing suspected blood stains with water. According to appellant, the criminalist’s tests caused the diluted spots.
The record is not as clear as appellant asserts. The criminalist testified he tested a number of stains on the shirt’s back and front, but said nothing explicitly about the bottom of the shirt. The court examined the shirt after defense counsel complained about the prosecutor’s comments. It found the prosecutor did not misstate the evidence because the jury would reasonably understand her comments involved spots different from those the criminalist tested.
4. Dismissal of Child Endangerment Counts
Presiding over the preliminary hearing in February 2003, the Honorable Teri Schwartz – who later presided over the trial – reduced the People’s charge against appellant of the attempted murder of neighbor Catherine Beck to the lesser charge of assault with a deadly weapon. At the time, the People had not yet alleged child endangerment against appellant, although they had charged him with assaulting his two children with a deadly weapon. A few weeks later, the People filed an information adding charges of child endangerment of appellant’s children, A. and B. (Pen. Code, § 273a, subd. (a).)
Appellant filed a motion under Penal Code section 995 to dismiss the information. The Honorable Leslie Brown heard the motion on June 4, 2003. Focusing on his alleged crimes against his children, appellant asserted his alleged criminal intent as neighbor Catherine Beck hustled the children through the open door into Koerber’s condominium was limited to shooting her. He argued that he held no criminal intent against the youngsters. The prosecutor argued to the contrary, asserting that shooting at one particular person in a group of people can be attempted murder for the targeted victim and assault with a deadly weapon against the other members of the group. Moreover, the prosecutor noted, even if appellant did not intend to injure his children, he endangered them by shooting at Beck. Hence, the People charged appellant in the alternative with assault with a deadly weapon and child endangerment. The prosecutor argued the jury should decide which occurred.
The court asked defense counsel to respond to the prosecutor’s “point” that the jury should decide which crimes appellant committed. Defense counsel replied no jury question existed if the People failed to offer at the preliminary hearing evidence of the appropriate intent for any particular crime. Judge Brown then ruled, “Okay. On that particular point, I think I do tend to agree with the original decision by . . . Judge Schwartz. To that extent I think I will grant the 995. [¶] So that will leave us with? [¶] [Prosecutor]: The 245’s. [¶] [Court]: The 245’s. And in all other aspects I would deny the 995.” The court’s minute order thereafter dismissed the two charges of child endangerment (counts 7 and 8).
Seven months later, in January 2004, the People filed a motion to clarify the record. The motion asserted Judge Brown’s minute order dismissing the child endangerment counts contained a clerical error. In support of her motion, the prosecutor told the court she had spoken to Judge Brown’s clerk, who had spoken to the court reporter who transcribed the June 2003 section 995 hearing. According to the prosecutor, the reporter had reviewed her notes of the hearing and confirmed that Judge Brown had agreed with Judge Schwartz in dismissing “that count” – meaning, in the prosecutor’s view, the charge for attempted murder of neighbor Beck. (In fact, the reporter is misremembering the hearing – or the prosecutor misquoting the reporter – because we have quoted above the pertinent passage from the June hearing. Judge Brown did not use the phrase “that count.”) The prosecutor argued that, in adopting Judge Schwartz’s February 2003 ruling, Judge Brown could not in June 2003 have understood Judge Schwartz to dismiss the child endangerment charges because the People had not yet charged appellant with child endangerment when Judge Schwartz ruled in February. Hence, when Judge Brown said he “tended to agree” with Judge Schwartz’s ruling – which the People assert means Judge Brown wholly adopted Judge Schwartz’s decision – Judge Brown was not dismissing the child endangerment charges because they had not been before Judge Schwartz. Thus, the dismissal of those counts in Judge Brown’s June 2003 minute order was a clerical error.
The day after the prosecutor filed her motion to clarify the record, the parties appeared in court. At that time, Judge Schwartz brought them up to date on events from the previous 24 hours. Judge Schwartz told them that the previous day Judge Brown’s clerk told Judge Schwartz’s clerk that the record contained an error that Judge Brown was going to correct. That morning, according to Judge Schwartz, she discovered in the court file an order by Judge Brown from the previous day, issued nunc pro tunc, deleting the entry in the June 2003 minute order dismissing the child endangerment counts. Judge Schwartz assured the parties she had not discussed with Judge Brown the People’s pending motion to clarify the record, and had nothing to do with his issuing his new order. She explained she nevertheless believed his order reinstating the two counts bound her.
Appellant contends the court erred in trying him on the child endangerment counts because Judge Brown had dismissed them in June 2003. According to appellant, Judge Brown could not thereafter use a nunc pro tunc order to reinstate them. Respondent argues Judge Brown did not dismiss the child endangerment counts in June, and his January 2004 order merely corrected the clerical error in the June minute order.
We conclude that a careful reading of the record shows respondent has the better argument. At the time of Judge Brown’s ruling in June 2003, the case consisted of six counts against appellant arising from his firing at neighbor Beck through the door: attempted murder and assault with a deadly weapon as to Beck, two counts of assault with a deadly weapon, and two counts of child endangerment as to his children. When Judge Brown partially granted appellant’s 995 motion to some unspecified “extent” mirroring Judge Schwartz’s preliminary hearing ruling, he asked: “So that will leave us with?” The prosecutor responded, “The 245’s” – the Penal Code section for assault with a deadly weapon.
Although the hearing encompassed appellant’s six crimes against Beck and the children, Judge Brown and counsel focused during argument principally on appellant’s criminal intent against Beck, debating among themselves whether he had tried to kill her. And due to Beck’s short distance from the children when appellant fired, his assaultive intent as to them when shooting at her was also part of the conversation. Not on the table for discussion during the hearing, because it was beyond dispute if one accepted the People’s preliminary hearing evidence, was the danger to which appellant had put his children when he fired at Beck. Whether or not appellant had legally assaulted the children when he shot at Beck, he certainly endangered them, and defense counsel did not argue otherwise.
Respondent contends that the gist of the discussion during the hearing reveals that the reference to “the 245’s” in the plural applied only to the cluster of crimes under active discussion – attempted murder and assault with a deadly weapon – and not the crimes – child endangerment – largely ignored during the hearing. Judge Brown’s implied acquiescence in the prosecutor’s statement that multiple aggravated assault counts remained was an acknowledgement that the case would not proceed on the attempted murder count involving Beck but would not be limited to child endangerment as to the children.
This conclusion is furthered by Judge Brown’s statement that he “agreed” with Judge Schwartz’s “original decision.” At the time of Judge Schwartz’s preliminary hearing ruling, the People had not yet charged appellant with child endangerment. Respondent reasons Judge Brown could not agree with a decision Judge Schwartz had not made regarding child endangerment when no such charges existed and no one during the hearing before Judge Brown had argued for their dismissal. We agree that respondent’s description of the proceedings is the most sensible available. Accordingly, Judge Brown’s nunc pro tunc order correcting the June 2003 clerical mistake and reinstating the child endangerment counts did not exceed his authority as he in fact had not intended to dismiss those counts. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 [court retains power to correct clerical errors in judgment].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.
In affirming the conviction, the DePriest court did not discuss due process or double-jeopardy concerns of the sort appellant raises here about the People’s midtrial trajectory analysis. And, of course, a case is not authority for a proposition it does not address. (People v. Avila (2006) 38 Cal.4th 491, 566.) Nevertheless, one cannot let pass unnoticed that in a scenario similar to appellant’s here, the People’s new evidence in DePriest passed muster with our Supreme Court.