P. v.
Filed 7/3/12 P.
v. Griffin CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DAMON KEITH GRIFFIN,
Defendant and Appellant.
B226746
(Los Angeles County
Super. Ct. No.
MA041196)
APPEAL
from a judgment of the Superior Court of
County.
Rand S. Rubin, Judge. Affirmed as modified.
Lise
M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz and
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
In this appeal, we affirm the conviction and sentence for
the judgment by striking the conviction for assault by means of force likely to
produce great bodily injury
and by striking the great bodily injury enhancement as to the mayhem
conviction.
PROCEDURAL
BACKGROUND
Appellant Damon Keith
Griffin was charged with three felony offenses:
mayhem (Pen. Code, §203;
name="_ftnref1" title="">[1] count 1), assault with a deadly weapon (§ 245,
subd. (a)(1); count 2), and assault by means likely to produce great bodily
injury (§ 245, subd. (a)(1); count 3).
As to counts 2 and 3, the information alleged that appellant personally
inflicted great bodily injury within the meaning of section12022.7, subdivision
(a). It was further alleged that
appellant had suffered three prior serious or violent felony convictions within
the meaning of sections 667 subdivisions (b)-(i) and 1170.12, subdivisions
(a)-(d), and two prior serious felony convictions (§ 667, subd. (a)(1)).
Appellant
was tried twice by jury. In the first
trial, the jury was unable to reach a verdict as to any of the three counts,
and the trial court declared a mistrial.
In the retrial, the second jury convicted appellant of all three counts
as charged. The sentence enhancement
allegations were found to be true. The
court found appellant’s prior convictions to be true but struck a
The trial court sentenced
appellant on count 2 to 25 years to life plus three years pursuant to section
12022.7, subdivision (a) and plus 10 years pursuant to section 667, subdivision
(a)(1). The court stayed the sentence on
counts 1 and 3 pursuant to section 654.
The sentence for count 1 included a three-year enhancement pursuant to
section 12022.7(a). The trial court also
ordered a restitution fine of $10,000 under section 1202.4, subdivision (b),
and stayed a parole revocation fine of $10,000 under section 1202.45.
Clifford Leon lived in and was the manager of an alcohol
recovery home in Lancaster. Three other occupants lived in the home with Leon, including
Ernestine Wright (Ernestine). Ernestine
is the mother of appellant. Leon testified that
he had no relationship with Ernestine.
He also stated that he and appellant “just knew of each other†because
appellant had previously come to see his mother in the home. Appellant had always been in a wheelchair but
would sometimes stand up. When he did,
he did not have a very strong gait or a very strong walk. His medical condition also limited mobility
in his neck, hips, and lumbar region.
On July 26, 2007, Leon arrived home at
approximately 5:00 p.m., went up to his
room, and heard “some hollering, some whooping it up.†He came out of his room and saw appellant and
his mother with a bottle of alcohol, making a lot of noise. The rules of the home forbade drugs and
alcohol. Leon calmly stated
that they needed to stop drinking and that appellant needed to leave. Ernestine then became belligerent and engaged
in a two-minute argument with Leon.
Ernestine had often screamed in the home before. The argument was not violent or physical. During the argument, appellant went out of
sight without saying anything.
Suddenly,
Leon felt something wet and looked towards his stomach. He saw a lot of blood and a two-pronged
barbecue fork sticking out of him, pushing out his liver, kidneys, and
intestines. The fork had been stabbed
through the back of Leon’s right side and out his abdomen. Leon then looked over his right shoulder, saw
appellant standing one to two feet behind him, and said, “I can’t believe you
did this to me.†Leon testified that
Ernestine was definitely in front of him prior to the stabbing. He was certain it was appellant who had
stabbed him from behind.
Leon ran out
the side door of the home, clutching his internal organs. He was afraid that if he passed out where he
was, he “might not make it out.†No more
than a minute and a half later, Leon lost consciousness. He woke up in a helicopter and was
transported to a hospital.
Approximately
a half-hour later, Sergeant Paul Pfrehm and Deputy Ruben Acosta of the Los
Angeles County Sheriff’s Department arrived at the home in response to a call
of assault with a deadly weapon. They
entered to check for additional victims and did not find appellant, Ernestine,
or any other individuals in the residence.
Ernestine has remained missing.
Sergeant Pfrehm and Deputy Acosta also did not find any blood in or
around the residence. The only blood
found was across the street where Leon had been lying. They did not find a barbecue fork in the
residence, and their report did not refer to any alcohol bottles. Pfrehm testified at trial that they had been
looking for a knife. They had never
received a description of the stabbing instrument as a barbecue fork.
As a result
of the stabbing, the hospital had to remove Leon’s abdominal muscles. He wears an abdominal binder to help him get
around. The hospital also had to repair
Leon’s kidney, liver, and large intestines.
The doctors grafted skin from his leg in order to cover the hole they
needed to cut in his stomach. Since
leaving the hospital, Leon has had digestive problems and trouble eating and
using the restroom. He has also been in
and out of the hospital two to three times a month due to pain. He regularly takes pain medication. He has not returned to the alcohol recovery
home out of fear of being harmed by appellant.
On January
16, 2008, Detective Jeffrey Knittel questioned Leon about the incident. He showed Leon a six-pack lineup, consisting
of six individual photos. Leon circled
appellant’s face and placed his initials by the circle. The entire time Leon maintained that
appellant was the individual who had stabbed him. Knittel did not attempt to locate the
barbecue fork because it did not seem feasible that it would still be at the
residence.
A. Exclusion of third party culpability
evidence
Appellant contends that the trial court abused its
discretion when it excluded evidence of Ernestine’s continued flight. At trial, defense counsel made an offer of
proof that investigators had been unable to find Ernestine despite their best
efforts to do so. The defense maintained
that such proof—combined with the fact that Ernestine had been present in the
home, arguing with Leon—could lead the jury to conclude that she was the one
who had stabbed him. The trial court
excluded the evidence under Evidence Code section 352 because it did
not directly link Ernestine to the stabbing and thus presented a potential
danger and prejudice in confusing and misleading the jury.
We will not
disturb a trial court’s assessment of evidence under Evidence Code section 352
unless we find that the court abused its discretion. (People
v. Robinson (2005) 37 Cal.4th 592, 625.)
A showing is required that the trial court “‘“exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.â€â€™â€ (
585.) Under Evidence Code section 352,
evidence of third party culpability must be capable of raising a reasonable
doubt of the defendant’s guilt by directly or circumstantially linking the
third party to the actual perpetration of the crime. (People
v. Hall (1986) 41 Cal.3d 826, 833 (Hall);
People v. Samaniego (2009) 172
Cal.App.4th 1148, 1175.) Mere evidence
of motive or opportunity is not enough.
(Hall, at p. 832.) The probative value of the evidence must also
outweigh the probability of any undue delay, prejudice, or confusion that might
result from its presentation. (
when it excluded evidence that connected a specific third party to the facts
concerning the actual commission of the crime.
(Id. at p. 833.) The third party knew intimate details about
the murder that the defendant had never mentioned; while the defendant was
right-handed, forensic evidence suggested that the perpetrator, like the third
party, was left-handed; and footprints of the same type of shoes that the third
party wore were found in the victim’s bedroom,
(Ibid.) Furthermore, in People v. Geier, supra,
41 Cal.4th 555, the Court upheld the exclusion of evidence blaming a third
party who was documented to be in a hospital 160 miles away from the scene of
the murder. (Id. at p. 582.) While the
evidence was not sufficient to point the third party towards the commission of
the crime, the Court further noted that the evidence “would have necessitated a
minitrial on the question of [the party’s] whereabouts on the night of the
murder thus creating the possibility of ‘confusing the issues, or of misleading
the jury.’†(Ibid.)
In the
present case, evidence that Ernestine fled the scene and that investigators
have not been able to find her does not directly or circumstantially suggest
that she was the one who did the stabbing.
In Hall, the evidence did
connect the third party to the murder.
In addition to illustrating that the third party had been present in the
victim’s home, the evidence suggested that the perpetrator and the third party
were both left-handed and that the third party had knowledge about the murder
that the defendant did not. Here,
although the fact that investigators simply cannot locate Ernestine may indeed
establish that she is scared or guilty of something,
it does not show that she was the stabber.
If anything, it suggests that she does not want to testify against her
son or, as the trial court noted, that she is afraid of being perceived as an
accessory to the assault. It could be
that she is missing because she is dead.
Ultimately, the specific reason why investigators have not been able to
locate Ernestine is irrelevant to respondent’s evidence of appellant’s
guilt. Digging into the reasons behind
Ernestine’s absence would only confuse and mislead the jury away from the case
at hand rather than exculpate appellant in any way. We thus cannot say that the trial court acted
beyond its discretion when it denied defense counsel’s offer of proof.
Even if the
trial court had abused its discretion by excluding evidence of Ernestine’s
absence, any error was harmless.
Introducing evidence that Ernestine was still missing would not affect
Leon’s prior testimony that the barbecue fork had entered through his back,
that appellant had been the only person standing behind him, and that he was
absolutely certain appellant was the sole perpetrator. Appellant did not testify or refute these
statements in any way. Sergeant Pfrehm
had testified that when he arrived at the scene, no one was there. Introducing evidence that Ernestine was still
not around would not change a reasonable jury’s consideration of the existing
evidence that appellant was the one who had stabbed Leon. There is no prejudicial error.
B. Lack of flight instruction as to Ernestine
Appellant argues that the
jury’s questions indicate that it was prepared to consider Ernestine as the
individual who stabbed Leon. During jury
deliberations, the jury first asked, referring to appellant, “What hand is the
dominant (right or left?).†It also
requested a copy of the court reporter’s transcript in order to review the
prosecution’s direct examination of Sergeant Pfrehm and his arrival at the
scene. The jury’s last request was to
hear Leon’s testimony of when he was stabbed and when he saw his guts on the
fork; however, the jury later rescinded this request. The jury asked no other questions. Accordingly, appellant maintains that the
trial court erred when it refused to provide the jury with a modified third
party flight instruction as to Ernestine.
Appellant further contends that his failure to request the instruction
from the trial court does not affect his right to assert such error on
appeal. We disagree. A defendant who fails to request a
modification to a jury instruction in the trial court forfeits the right to
protest those errors on appeal. (
objecting earlier, we nonetheless do not see how the jury’s requests indicate
that it would have ever considered Ernestine, rather than appellant, as the
perpetrator.
Certainly jury deliberations
may indicate that a different jury verdict is plausible (People v. Cardenas (1982) 31 Cal.3d 897, 907 [where 12 hours of
jury deliberation illustrated the closeness of the case]). However, to demonstrate that the jury would
have changed its mind but for an error made by the trial court, jury questions
and deliberations must expressly indicate that the jury had discussed a
different verdict. (See
exist to support the alternative verdict.
(Ibid.)
Here, neither the evidence
nor the jury manifested any express consideration of Ernestine’s
culpability. It is fair to assume that
if the jury had really been prepared to consider Ernestine as the perpetrator,
its requests would have indicated so.
However, the jury did not allude to or make any mention of Ernestine at
all. As such, we cannot see how the jury
would have changed its mind or benefitted from a third party flight
instruction. We have already established
that there was no prejudicial error in excluding evidence of Ernestine’s
flight. Accordingly, we reject the
defense’s contention that the trial court committed any further prejudicial
error in refusing to provide the jury with a third party flight instruction.
C. Modification of the judgment
The Attorney General concedes that (1) appellant cannot be convicted
both of assault with a deadly weapon (count 2) and assault by means like to
produce great bodily injury (count 3). (
919, fn. 5.) The Attorney General also
concedes that appellant’s contention is correct that the trial court erred in
imposing and staying a three-year sentence for great bodily injury, enhancing
the sentence pursuant to section 12022.7 as to count 1 (mayhem). The information did not allege such an enhancement,
nor did the jury find such an enhancement allegation to be true. Accordingly, the Court will modify the
judgment as to count 3 by striking that count and as to count 1 by striking the
great bodily injury enhancement.
DISPOSITION
The judgment
is modified to strike appellant’s conviction as to count 3 and the great bodily
injury enhancement as to count 1.
Otherwise, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI
TODD, J.
CHAVEZ,
J.
name="_ftn1" title="">[1] All further references are to the Penal Code unless
otherwise noted.
