P. v. Vlahos-Schmidt
Filed 6/12/13 P. v. Vlahos-Schmidt CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
GINGER
VLAHOS-SCHMIDT,
Defendant and Appellant.
A133704
(Alameda
County
Super. Ct. No. 166552)
INTRODUCTION
Defendant,
a petite-120-pound woman, stabbed her 220-pound-male roommate in the back
during an altercation in which he pummeled her in the face, bloodying her nose
and blackening her eyes. Defendant
testified she stabbed her roommate in self-defense, and the trial court allowed
her to recount a number of prior violent incidents between them, but prevented
defendant from testifying that on one occasion her roommate threw her down the
stairs and on another occasion threatened to kill her. The jury was instructed on antecedent
threats, but convicted defendant of felony assault. On appeal, defendant argues the trial court’s
ruling violated her right to testify and constituted an abuse of
discretion. We agree the court erred,
but after a review of the entire record, conclude the error was harmless beyond
a reasonable doubt. We will affirm.
STATEMENT OF THE CASE
An
information alleged that on June 28,
2011 defendant Ginger Vlahos-Schmidt assaulted Zenon Lopata with a
deadly weapon (a knife) and inflicted great bodily
12022.7, subd. (a).)
name="_ftnref1" title="">[1] A jury found defendant guilty as
charged. Defendant was sentenced to
state prison for five years: the low
term of two years for the assault, and a consecutive three years for the great
bodily injury enhancement.
STATEMENT OF FACTS
Lopata,
defendant, and Alicia Brown shared a three-bedroom flat on the top floor of an
old Victorian on the corner of East 15th Street
and 24th Avenue in Oakland. Each roommate had his or her own bedroom and
shared a common kitchen, living room, and hallway.
On
February 20, 2011, Brown
invited a group of musician friends to spend the night in the common area of
the apartment. Lopata was unhappy about
that and phoned the landlord from his room to complain. Defendant overheard the conversation and when
he opened the door to his room, she stabbed him in the bicep with a pocket
knife. He admitted pushing defendant,
but denied slapping her in the face. The
guests came to her defense, “beat[ing him] up and jump[ing] in [his]
face.†Lopata called 911 three times and
said his life had been threatened, but “nobody came.†Police dispatch evidence corroborated
Lopata’s calls.
There
was also a dispute that day over vodka.
Defendant had been drinking Lopata’s vodka the day before and had
promised to replace it the next day.
Lopata asked defendant if she had replaced the vodka, and since she had
not, Brown went out to get more.
For
many weeks after that incident, there was no conversation or socializing
between the three roommates, but by June 28, defendant and Lopata had begun
talking again. Defendant had downloaded
the television series “Weeds†on her laptop, and she offered to watch it with
him. They plugged the computer into the
television in his bedroom and watched the show for an hour and a half or two
hours. He was in his chair eating and
having “a few shots†while defendant sat on his bed drinking beer and vodka.
For
some reason Lopata could not remember, a dispute arose and defendant punched
him in the face. Defendant is a small
woman, and he is 5 feet, 10 inches tall and weighs 220 pounds. She did not hit him very hard, but it was
hard enough that he wanted the evening to be over. He pushed her out of his room and placed the
laptop on the counter in the kitchen.
She was not injured and went to her room.
About
10 or 15 minutes later, while he was hanging clothes in his room, he heard
running steps and felt a big jolt in his back on the left side. He forcefully pushed her away from him and
she fell to the ground against the heater and Alicia Brown’s door. It is possible she could have been injured,
but he did not see it because he was bleeding profusely and was in great pain
as he knocked on Brown’s door. He denied
punching defendant in the face.
Defendant
got up and ran away, yelling at Lopata that she was going to “call her friends
at Hells Angels to have them kill me.â€
At that point, he saw the knife in her hand. Lopata could not find his cell phone and
Brown refused to open her door, so Lopata called 911 from the manager’s
apartment downstairs. Evidence of the
911 call was presented. This time, the
police came right away and he was transported to Highland
Hospital by ambulance. Defendant was detained and disarmed of the
knife outside the gate to the apartment building. Her nose was injured, and she was
distraught. Photos taken of both
defendant and Lopata at the scene were admitted into evidence.
Lopata
acknowledged that defendant had accused him of throwing her down the stairs,
tossing her out of a futon, and spanking her, but Lopata maintained, “that
never happened.†He denied telling
defendant “your time is coming to an end, darling. You’re going to get what’s coming to you.†He denied calling somebody on February 20 and
saying, “you’ve got to come over here; we’ve got to kill these bitches.†He did admit throwing a slipper that
defendant had left in his room down the hallway in her direction.
Defendant
testified in her own behalf.
Significantly, she testified to prior assaults and threats committed by
Lopata. According to defendant, when she
moved into the apartment in October 2010, Brown and Lopata already lived
there. At first, they all got along
well; she and Lopata cooked and ate together.
Things began to change after a month.
Lopata would get pushy and mad if defendant declined to drink with him. Lopata pretty much drank all day. He made mean, derogatory comments to
defendant, argued with everything she said and put her down.
Once,
in November or December 2010, for no apparent reason, Lopata overturned a futon
while defendant was reclining on it.
Lopata then went into his room and stayed there for the rest of the
night. The next day Lopata apologized
and acknowledged that his actions were “uncalled for.â€
Another
time, shortly before February 20, 2011,
Lopata threw defendant onto the futon and spanked her when she refused to drink
with him. Defendant talked to Brown, a
few of her friends, and the landlord about this incident.
On
February 20, 2011,
defendant asked Brown to go to the store to get more vodka, because Lopata’s
vodka was running low and defendant was afraid he would get angry when he ran
out of it. When Lopata ran out of vodka
before Brown returned, he yelled at defendant, grabbed her arms, and brought
her towards him really hard. Because she
was afraid of defendant who was out of control, she had a pocket knife in her
hands. When Lopata would not let go of
her, she brought the knife down onto his arm.
“[T]hen he let go†and pushed her away.
Some musician friends of Brown were staying at the apartment at the time
of this incident.
Defendant
heard Lopata say several times that he was calling the police. She also overheard Lopata say to someone on
the phone: “You need to get over here
now. We need to kill a couple of these
bitches over here. We have two bitches. We need to take care of them.†She told Brown to call the police and then
waited outside with her son for the police to arrive for about 40 minutes. When no one came, defendant left with her
son. She did not make a police
report. After this incident, she asked
the landlords to let her out of her contract, but they refused to do so.
Defendant
was not on speaking terms with Lopata for many months after the February 20
incident. At some point, Lopata started
making small talk with her when her son was visiting, and she was courteous to
Lopata to keep the peace in front of her son.
Lopata
kept asking defendant if she would let him watch the last season of the
television series “Weeds†before the new season began, and on June 28 she
agreed. She set up the computer and sat
down to watch it with him for a few minutes before leaving to do something
else, but he closed the door to his room after she sat down. She felt very uncomfortable with the door
closed, but she “just played it off,†talking to him for a few minutes before
making an excuse to exit. She left and
entered the room several times to “see where he was in the series, being
courteous.â€
Right
before the incident, defendant left to smoke a cigarette outside on the
balcony. It was raining, and she put on
her jacket. In the jacket pocket was a
knife she had put there earlier in the day when she went to a store in a
dangerous part of the neighborhood to buy cigarettes. After smoking her cigarette for about five
minutes, she went back inside to check on Lopata again. “As soon as I turned the corner to his room,
he started punching me in the face[.]â€
Defendant was pinned against the door and could not move while he was
hitting her. Defendant was scared,
shocked, and in pain. She “didn’t know
if he was going to stop.†She pulled the
knife out of her jacket pocket, “swung with it†just once with her right hand and
connected. She was not aiming at any
part of his body and could not see what she was doing because she “was being
pummeled in the face.†When the knife
connected with Lopata he stopped hitting defendant. Defendant testified on cross-examination that
she stabbed Lopata in self-defense. She
did not, however, call the police that night.
Defendant
ran as fast as she could out the door, slipped on a towel Lopata kept outside
his door, and hit the heater with her left shoulder and arm. She caught herself before she fell down and
continued running out the front door with the knife and sheath in her
hand. She got into her car and drove to
a friend’s house for help. The friend did
not respond to her honking and yelling outside his house. She drove back to her apartment and parked
the car in the secure parking area.
She
was detained by police when she walked into the front yard of the apartment
building. Defendant testified she had a
broken nose, a lump on her forehead, a chipped and loose tooth, and a swollen
face. Her eyes turned black the next
day. She was taken by ambulance to the
hospital. Defendant gave her statement
to the police about what Lopata had done to her. However, at the hospital, “the woman†who
arrested defendant said she did not write down defendant’s statement; she just
wrote that defendant wanted to wait until she spoke to an attorney.
Alicia
Brown testified that on the night of June 28, she arrived home from work around
6:00 p.m. and heard defendant in
Lopata’s room. It sounded friendly. She went into her room and turned on her
music. She did not see or hear the
altercation.
Nor
did Brown see the altercation between defendant and Lopata on February 20. However, she generally corroborated
defendant’s version of the events leading up to that altercation and its
aftermath. In particular, she testified
that while she and defendant were waiting for the police to arrive, Lopata told
somebody on the phone, “You need to get over here. We need to kill these bitches.†Brown called 911 and left the apartment. The police responded two hours later. Brown also testified that while she never saw
Lopata hit or hurt defendant, she was afraid of Lopata.
Defendant’s
former boyfriend testified as a character witness. In the eight or nine years he had known
defendant, he had never known her to be physically assaultive or violent, even
when she had too much to drink.
One
of the visiting musicians testified about the
Lopata on February 20. Lopata became
loud, rude and angry. Defendant was
trying to calm him down and Lopata was yelling at her. Lopata pushed defendant forcefully into the
wall. The visitor confronted Lopata
about his behavior, but Lopata responded that he could do whatever he wanted to
defendant because it was his house. The
visitor did not see defendant stab Lopata in the arm.
DISCUSSION
Defendant
argues the trial court abused its discretion and violated her right to testify
under Rock v. Arkansas (1987) 483
U.S. 44 when it ruled she could not testify that in November 2010 Lopata pushed
her down the stairs and in March 2011 he threatened her, saying: “Your time is coming to an end, darling. You are going to get what you deserve.†The trial court gave two reasons for
excluding the evidence. First, the trial
court indicated that provisions of state law on reciprocal discovery in
criminal cases required defendant to: a) disclose
to the prosecutor prior to trial that she intended to testify about the
victim’s prior assaultive and threatening behavior towards her, and
(b) litigate the admissibility of such testimony prior to trial. Evidently, the evidence was excluded as a
sanction for the perceived discovery violation.
Second,
the trial court stated that allowing evidence of multiple prior incidents would
occasion an undue consumption of time.
Therefore, the court ruled defendant could testify about a slipper
incident, a spanking incident, and a slapping incident, but not about the
stair-throwing or threat incidents. A
defense request for reconsideration of this ruling was denied for the
additional reason that a threat in March was not relevant to the June 28
offense, given that defendant “went into [Lopata’s ] room that day to
. . . show him the video [and] [i]t didn’t look like she was still
scared of him.â€
The Attorney General does not attempt to
defend the discovery sanction aspect of the court’s ruling. Our own review of section 1054.3, which
governs the defense’s disclosure obligation to the prosecution, does not reveal
any legal basis for the court’s ruling.
On the contrary, case law interprets section 1054.3 as “requir[ing]
defense counsel to disclose to the prosecution all relevant statements
made by persons, other than the
defendant, whom the defense intends to call as witnesses at trial,
including unrecorded oral statements relayed to defense counsel in an oral
report by a third party, such as an investigator, and oral statements made by
the person directly to defense counsel.â€
(Roland v. Superior Court (2004)
124 Cal.App.4th 154, 160, second italics added.)
Nor does the court’s implicit Evidence
Code section 352 ruling withstand analysis.
It is well settled that evidence of antecedent threats and assaults by
the victim against the defendant is admissible on the question whether the
defendant acted reasonably in self-defense.
(People v. Moore (1954) 43
Cal.2d 517, 527–529; People v. Minifie
(1996) 13 Cal.4th 1055, 1069.) The jury
in this case was instructed on that principle and on its corollary: “Someone who has been threatened or harmed by
a person in the past is justified in acting more quickly or taking greater
self-defense measures against that person.â€
(CALCRIM No. 3470.) Evidence of
Lopata’s prior threats and acts of violence towards defendant were admissible
and relevant to defendant’s claim she acted in self-defense. “Of course, the right to present relevant
testimony is not without limitation. The
right ‘may, in appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process.’
[Citation & fn. omitted.] But restrictions of a
right to testify may not be arbitrary or disproportionate to the purposes they
are designed to serve. In applying its
evidentiary rules a State must evaluate whether the interests served by a rule
justify the limitation imposed on the defendant’s constitutional right to
testify.†(Rock v. Arkansas, supra, 483 U.S. at pp. 55–56.) In our view, the court’s response to
defendant’s proposed testimony that Lopata pushed her down the stairs and later
threatened her life was disproportionate to the purposes served by Evidence
Code section 352. In particular, the
court abused its discretion when it prevented defendant from testifying that
Lopata threatened her life, particularly after it permitted Lopata to
Defendant
maintains the error was prejudicial under Chapman
v. California (1967) 386 U.S.
18 (Chapman) and requires reversal,
but after careful review of the entire record, we do not agree. In fact, the court did allow the jury to
consider a great deal of evidence of Lopata’s prior violent behavior toward
defendant which, if believed, could have supported an acquittal based on
self-defense. Moreover, the court
correctly instructed the jury on self-defense and antecedent threats, and
evidence of one such threat was admitted.
In addition, defendant testified at length about the injuries she
suffered at Lopata’s hands on June 28 and about the circumstances under which
she stabbed Lopata in the back. Photos
of both parties’ injuries were admitted, as well as evidence of Lopata’s 911
calls to police, and defendant’s failure to call the police. “Under Chapman,
the question is whether there is a reasonable doubt that the error contributed
to the verdict.†(People v. James (2000) 81 Cal.App.4th 1343, 1362.) Here, we are convinced beyond a reasonable
doubt the error did not contribute to the verdict because the excluded evidence
was “unimportant in relation to everything
else the jury considered on the question of the defendant’s guilt, as
revealed in the record.†(
on other grounds in Estelle v. McGuire
(1991) 502 U.S. 62, 72–73, fn. 4.)
DISPOSITION
The
judgment is affirmed.
______________________
Margulies, Acting P.J.
We concur:
______________________
Dondero, J.
______________________
Banke, J.
name="_ftn1" title=""> [1]
Unless otherwise indicated, all further statutory references are to the Penal
Code.
