P. v. Fierro

Filed 1/21/10 P. v. Fierro CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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A jury convicted defendant Salvador Fierro, Jr., of two counts of assault with a deadly weapon, a knife (Pen. Code,  245, subd. (a)(1)),[1] on his parents and removing a telephone line ( 591, a misdemeanor), and acquitted him of their forcible false imprisonment ( 236, 237, subd. (a)). The trial court sentenced defendant to three years in state prison on the felonies (giving him credit for time served on the concurrent misdemeanor term).

On appeal, defendant contends the trial court erred in allowing the use of his prior felony conviction for assault ( 245) to impeach his parents opinion of him, and in denying a request for a continuance to review new evidence used to impeach his mother in rebuttal. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Testimony of parents

Defendant, in his mid-20s, had a bedroom in the home of his stepfather and mother where he stayed intermittently. In September 2008, he was having dinner with them. He neglected to turn off the tortilla warmer, which began to smoke. When his mother chided him, he at first appeared dazed and then began loudly disputing whether she had asked him to turn it off.

Defendant paced between a bedroom, the computer room and the kitchen, continuing his murmured reiterated harangue against his mother. The mother answered the phone. It was a call from her nephew. As she spoke with the nephew, defendant continued to pace, and began shouting that his parents were conspiring against him. He unplugged the phone from the wall jack and walked into the kitchen, where he pulled a 10-inch knife from the drawer. He walked around waving the knife in the air as his parents sat on the living room sofa, accusing them of saying things about him, and of mumbling and failing to finish their sentences. His eyes appeared to be unseeing. The parents sat there of their own volition, listening to his rants. They had never seen him behave this way before. Defendant did not have a previous diagnosis of mental illness.

The mother decided she needed to summon help for defendant, so she got up and ran through the nearest sliding door into the backyard.[2] The five-foot-one-inch mother then ran the 21 feet to the six-foot fence and climbed over with the help of a bench. Her husband, who grabbed their five-pound Yorkie, was right behind her. Defendant did not follow them. The mother had not asked defendant to leave the house because she feared he might hurt himself in that state.

As the parents walked down the street on which they lived, the nephew drove up. He took them back to their house, where he entered with the husband. Defendant was gone.

They drove to the home of the mothers sister where, at the sisters urging, the mother phoned the police in order to obtain mental health services for defendant. She also phoned her younger sister, who lived with their mother, and told her that defendant might be headed there. A police officer contacted her after two or three hours, and she gave him a statement. She refused to request a restraining order. She accepted the officers offer to accompany them to their home to see if defendant had returned. He was not there. They collected some belongings and returned to the sisters home to spend the night, simply because they needed some emotional support.

After eliciting the mothers testimony that this was not normal behavior for her son, the prosecutor introduced proof of defendants prior conviction for assault, and asked if that changed her opinion of whether the knife incident was normal behavior. She said it did not. She asserted on cross-examination that she was not familiar with any of the facts of that case beyond it involving a dispute with his then-cohabitant (and mother of his child), who similarly had said to the mother that she did not think his behavior in that instance was usual for defendant. The mother noted that she had not wanted to testify against defendant, and she felt the system as a whole had failed him, because all she had wanted was some sort of evaluation and treatment for him. The stepfather, also after testifying that this behavior was not customary for defendant, asserted that defendants prior assault conviction (the facts of which he did not know) did not change that opinion.

Testimony of responding officer

The officer who spoke with the parents testified that they said defendant became very angry after being asked to turn off the tortilla warmer and had started yelling. They told him defendant pointed the knife at them and ordered them to sit on the couch. He approached them and made horizontal motions with the knife at the level of their throats. They were too afraid to move until defendant unplugged the phone, at which point they fled through the back door. The mother said that she had warned her younger sister and her mother that defendant might be heading there and that they should be careful. The parents told the officer that they were afraid of returning home, so they would be spending the night with relatives. The mother had emphasized that she wanted treatment, not imprisonment, for her son.

The officer had also spoken with the mother after the preliminary hearing. She told him she had read his report and pointed out a couple of errors. These did not include its inconsistencies with her account at trial to which the officer had just testified.[3]

Rebuttal evidence

Defense counsel announced he was resting. The prosecutor asserted that he would be using the lunch recess to evaluate whether to call the mother in rebuttal.

On his return from the recess, the prosecutor said he had just obtained a copy of the recording of the call to dispatch and had made a four-page transcript with which he wished to further impeach the mother. Defense counsel admitted having a copy of the one-page event history (in which dispatchers summarize the nature of a call), but claimed he never received any information about the existence of a recording, and asked for a continuance to review it. The court noted that the event history was a pretty good outline of the call itself, and it should have alerted defense counsel to the existence of the tape, just as it did the prosecution. The court denied defense counsels request that the mother be allowed to listen to the recording before she testified.

The mother did not recall telling the dispatcher that as she fled the house her son threatened to hurt the police if she called them, or that she was afraid her son would come home and hurt them if they went back to their house. At that point, the prosecutor played the recording.

In the call, the mother said defendant had in fact already been to his grandmothers home. She had called there to warn her to lock the doors because she was not sure in what state defendant would be. Her younger sister had told the mother about speaking to defendant outside the home, who had complained of hearing voices. Her younger sister had also told the mother that as defendant left, he said he needed to kill his parents because they were doing stuff against him. The mother expressed her suspicions that defendant had an undiagnosed mental condition, and mentioned that past drug use had caused him to act this way, although he was not presently using drugs. He had been depressed and was telling people that he should hurt someone in order to go to jail. He had told the mother as she ran out of the house (because he had a knife to us) that he would hurt the police to go to jail to have a place to live.[4] She did not want to return home in light of his threats, because she was not sure if he was still angry, but she was concerned that he might hurt the people with whom she was staying at present. She expressed her desire for his hospitalization rather than his incarceration.

After hearing the tape, the mother said there was little of it she remembered, having been in an excited state at the time. She did not recall defendant making any threat to hurt the police as they left. The court denied defense counsels request for a short recess.

Defense counsel then cross-examined the mother about the context of her various remarks in the call, and highlighted the absence of any mention that defendant had waved the knife at their throats or ordered them to sit. Her only intent in placing the call had been to get defendant to a mental facility, although now she realized that when you call the police, you go to jail. She noted that defendant had checked himself into a mental facility five days later, but the trial court sustained an objection to a question about his diagnosis.[5] She also noted that his demeanor had been much improved since he began taking psychotropic medications after the incident.

The court granted defense counsel a continuance until the following morning, at which time the defense called the mothers sister. She testified about her recollection of the mothers interview with the officer, which she had watched.

DISCUSSION

I

At great length, the parties analyze whether the trial court was correct in allowing the use of defendants prior assault conviction for impeachment. Given that any error is manifestly harmless, we do not need to delve into the merits of the issue merely for the purpose of supplying an evidentiary treatise.

With respect to any prejudice to defendant from the jurys improper use of his prior conviction, we are concerned only with the risk of evoking the jurys emotional bias against him for reasons unrelated to his guilt of the present offenses. (People v. Scheid (1997) 16 Cal.4th 1, 19.) The trial court properly admonished the jury against use of the prior conviction for any purpose other than credibility, and the verdicts that acquitted defendant of false imprisonment are confirmation that the jury heeded the admonishment. As for its proper impeachment purpose, we are convinced beyond a reasonable doubt in light of the remaining evidence we have related above that any jury would have found him guilty even in the absence of the evidence of his prior conviction, given the testimony of the officer regarding the mothers statements on that night and the obvious motive of defendants parents to minimize the degree of his culpability.

II

Defendant also argues that the denial of his attorneys request for a continuance was an abuse of discretion that violated his right to a reasonable opportunity to prepare his defense. He claims that as a result, he was unable to object to . . . [the] admission (presumably before the jury heard the recording) of several statements which were irrelevant and hearsay evidence, which was arguably inadmissible and improper. He contends these statements cemented the idea in the jur[ors] minds that [defendant] was a violent person who used drugs; had threatened to harm the police; and on several occasions had threatened to hurt or kill his family, which compounded the prejudice from the use of his prior conviction for impeachment. He further argues that the recording was a key piece of prosecution evidence in eroding his mothers credibility.

Once again, we do not need to belabor the merits of this claim, beyond noting that in these circumstances--where defense counsel had the event history of the dispatch call in his possession--he would be hard-pressed to establish the necessary diligence for a continuance such that the denial of his request was an abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660.)

Whether alone or in conjunction with the prior conviction, the negative information in the recording regarding defendant did not exert any improper influence on the jury to convict him for reasons other than his guilt because, as we just noted, the jury acquitted him of the other offenses. Indeed, the recording allowed the jury to hear the evidence of defendants mental condition that the trial court otherwise had prevented him from presenting. As for its proper use as further impeachment of the credibility of an obviously biased witness, the recording did not impart much that related to the dispute between the accounts of the mother and the officer on the central issue of the manner in which defendant wielded the knife, other than her ambiguous statement that he held a knife to them and the corroboration of the officer on the issue of whether the mother called her younger sister to inform or to warn her. We are thus convinced beyond a reasonable doubt that a more favorable result would not have occurred had defense counsel been given a continuance for the presumable purpose of seeking to redact the material in advance that he considered objectionable. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

HULL, Acting P. J.

ROBIE , J.

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[1] Undesignated statutory references are to the Penal Code.

[2] At the preliminary hearing, the mother testified that she took the opportunity to make her way out the back door when defendant unplugged the phone.

[3] In cross-examination, the mother had denied making these inconsistent statements to the officer. Her sister, who was present for the interview, concurred that the mother had never mentioned anything to the officer about defendant pointing a knife at his parents.

[4] She mentioned defendant lived a nomadic lifestyle, going from home to home of friends and relatives and including bouts of homelessness.

[5] Apparently defendant admitted himself on advice of counsel, which is where the police located him when they arrested him. The court had ruled that defendants possible mental illness was not relevant in the absence of an insanity plea as it does not establish unconsciousness nor interfere with his ability to form general intent. Therefore, it would not allow testimony from the doctor who treated him at the facility. The court, however, took defendants mental condition into account in sentencing him to the lower term over the prosecutors objection.