P. v. Tanksley
Filed 2/1/13 P. v. Tanksley CA1/5
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A134690
(
Super. Ct. No. 1106780)
Appellant
Kenneth Tanksley was tried before a jury and convicted of
great bodily injury. (Pen. Code,
§ 245, subd. (a)(1).)
name="_ftnref1" title="">[1] He contends the judgment must be reversed
because (1) the court excluded defense evidence that the victim had threatened
appellant’s girlfriend; (2) the court omitted language from CALCRIM No. 3470
that would have advised the jurors they could consider the victim’s threats to
a third party when evaluating appellant’s claim of self-defense; and (3) the
cumulative effect of these alleged errors was prejudicial. Appellant also argues that the court lacked
jurisdiction to issue an order that he stay away from the victim for three
years, a point the People concede. We
will order the judgment modified to vacate the stay-away order, but otherwise
affirm.
FACTS AND PROCEDURAL HISTORY
Marlon
Jefferson met Sondra Wyrick on the MySpace Internet site and the two became
friends. He attended a birthday party
for Wyrick’s daughter and met appellant at the party. He also saw appellant on another
occasion. In November or December 2010,
Wyrick told Jefferson that she had a boyfriend
(appellant) and did not want Jefferson to contact her
again. Appellant talked to Jefferson
on the phone and told him to stop calling Wyrick.
On
January 4, 2011, Jefferson
gave a friend of his a ride to a Laundromat near Wyrick’s home in Pittsburg. As he was leaving the Laundromat, appellant
walked up to him and said, “You’re the motherfucker talking shit on the
phone.†Jefferson
asked him what he was talking about, and appellant punched Jefferson
in the face. Jefferson
fell down and appellant hit him several more times, knocking his head against
the ground. Appellant continued striking
Jefferson until someone pulled him away. The incident was captured on the Laundromat’s
surveillance video.
After
the attack, Jefferson was bloody and dazed. He called the police, who arrived shortly,
and claimed not to know the person who had hit him. He suggested, “It must have been a case of
mistaken identity.†Jefferson
was taken to the hospital for treatment of his injuries, which included
lacerations, a fractured nose, and a cracked tooth.
Sometime
in mid-January 2011, Jefferson was interviewed by
Detective Wilkie of the Pittsburg Police Department. Jefferson was shown a
photographic lineup that included a picture of appellant, but he said he did
not recognize anyone. Wilkie noticed
that Jefferson’s hands were shaking and asked him what
was wrong; Jefferson said he was “terrified.†Jefferson spoke to the
police several times without identifying appellant as his attacker. During the final interview, he was asked if
he knew Sondra Wyrick and realized his assailant was Wyrick’s boyfriend.
Appellant
was charged with assault by means of force likely to produce great bodily
injury and a great bodily injury enhancement.
(§§ 245, subd. (a)(1), 12022.7, subd. (a).) A jury trial was held, at which Jefferson
testified and admitted that he had lied to the police about not knowing
appellant. Jefferson
explained that he had been “terrified.â€
He claimed that before the attack, appellant had spoken to him on
Wyrick’s cell phone and told him, “If you don’t stop, I am going to do
something to you.â€
Sondra
Wyrick testified that she and Jefferson became casual friends after meeting on
the MySpace site. She thought he seemed
like a nice person and invited him to a social event at her apartment and a
birthday party for her daughter, which appellant also attended. She introduced appellant and Jefferson
at the birthday party, and they had a brief, pleasant conversation. A couple of weeks after Wyrick started dating
appellant, she told Jefferson to stop contacting her, but Jefferson kept
sending her text messages asking her to be his girlfriend. Wyrick told him she already had a boyfriend,
and felt “disrespected†that he would not leave her alone. Once when Jefferson called her, appellant got
on the phone and talked to him.
Jefferson continued to contact her and eventually she changed her cell
phone number.
Appellant
testified that he was Wyrick’s boyfriend and lived with her and her mother in
the fall of 2010. He had met Jefferson
and knew him to be a friend of Wyrick’s.
On one occasion, according to appellant, Jefferson showed him a gun that
looked real and told him, “You don’t know nothin’ about guns.†Appellant thought Jefferson was showing off
and did not take this as a threat.
Appellant’s
attitude toward Jefferson changed when Jefferson refused to stop contacting
Wyrick. On one occasion, appellant took
the phone from Wyrick and told Jefferson to stop calling. According to appellant, Jefferson responded
by saying, “Fuck you, bitch. I’ll kill
you.†Appellant called him back and left
a message saying that “wasn’t cool,†and Jefferson sent a text message to
Wyrick threatening to “beat [appellant’s] ass.â€
Appellant thought Jefferson seemed “bipolar†in the messages he sent to
Wyrick, because he would ask Wyrick how she was doing and then threaten to beat
appellant. The text messages scared
appellant, who told Wyrick to call the police.
Appellant
testified that Jefferson continued his unwelcome contact. After Wyrick changed her cell phone number,
he saw Jefferson drive by their apartment and he began to worry. On January 4, 2011, appellant saw Jefferson’s
car in the area and looked around because he did not want to “get snuck up
on.†He walked to a convenience store
with a friend, and after buying cigarettes, saw Jefferson come out of a
Laundromat. Appellant testified that he
thought Jefferson was carrying something in his hand (something he never
mentioned to the police when he was interviewed about the incident), but he
confronted Jefferson and asked him, “What’s that shit you were saying?†Jefferson responded by saying he didn’t “give
a fuck†and appellant saw him “flinch.â€
Thinking Jefferson was going to hit him, appellant punched
Jefferson. He then “blacked out†and did
not realize he was still hitting Jefferson until someone pulled him away. Appellant had viewed the video tape of the
incident and described his response to Jefferson as a “big overreaction.†He explained, “I was kind of scared. My senses [were] bugging out. He already told me he was going to kill me, and
then when he said he didn’t give a fuck about what the conversation was over
the phone, I felt like it was the same thing, like take his threat
serious[ly].†Appellant had seen text
messages from Jefferson to Wyrick telling her to bring appellant over so he
could “beat his ass,†and he took the threat seriously.
The
jury found appellant guilty of aggravated assault as charged, but found the
great bodily injury enhancement not true.
The court sentenced appellant to prison for the three-year middle term
and ordered that he have no contact with Jefferson for three years.
DISCUSSION
1. Evidence of
Victim’s Threats to Appellant’s Girlfriend
Appellant
argues that the trial court deprived him of his constitutional right to present
a defense by excluding evidence that
Jefferson had made threats of violence against Wyrick. We reject the claim.
Generally
speaking, evidence of a victim’s threat of violence against a third party is
admissible to support a claim of self-defense when there is evidence the
defendant knew about the threat. (
656-657 (Davis); People v. Spencer (1996) 51 Cal.App.4th 1208, 1219 (
testimony that he was in fear for his life by proving the reasonableness of
such fear†(Davis, at p. 656);
knowledge that the alleged victim has threatened other people with violence
tends to show that the defendant’s fear of the alleged victim is
reasonable. (See Spencer, at p. 1220.) Here,
contrary to appellant’s assertions, the defense did not attempt to prove that
appellant was frightened of Jefferson because he knew Jefferson had threatened
Wyrick with violence.
The
issue arose when, prior to opening statements, the prosecution sought to
exclude testimony by Wyrick as irrelevant, given that she had not been at the
scene of the assault and had testified at the preliminary hearing that it had
been several months since she had heard from Jefferson. Defense counsel stated that she intended to
call Wyrick to support appellant’s own testimony that he was aware of
problematic contacts with Jefferson near the time of the incident. Counsel elaborated, “I don’t think I have evidence of threats. That’s not what we’re offering. We have evidence of harassment that caused
[appellant] to feel threatened by this person’s continued unwanted presence. And I’m not going to have [Wyrick] testify, I
think, to any specific threats if you’re remembering something in the police
report.†(Italics added.) The court indicated that evidence of threats
against Wyrick did not appear to be relevant at that point.
The
prosecutor noted that Wyrick had claimed to have called the police at one point
because Jefferson threatened to “beat her ass,â€
but defense counsel clarified, “I wasn’t
going to say that Mr. Jefferson had ever threatened her, but I was going to
say that they had this relationship and that she started not wanting contact
and that he became obsessive and was frequently texting her and giving her
frequent unwanted calls and that her boyfriend was aware, and he was nervous
about it, too.†(Italics added.) The prosecutor stated she would not object to
Wyrick being called to corroborate testimony by appellant to that effect, but
that for the time being, counsel’s opening statement should simply reference a break
in the relationship between Jefferson and Wyrick and appellant’s awareness of
that situation. Defense counsel
indicated that she intended to say that appellant was aware of Jefferson’s
unwanted contact, and the prosecution agreed to this characterization of the
evidence to be offered.
Consistent
with these representations, defense counsel called Wyrick as a witness but did
not ask her whether Jefferson had ever threatened her with violence. Instead, she elicited testimony by Wyrick
describing her friendship and falling out with Jefferson, his pattern of
frequently texting and calling her even after she had asked him to stop, and
her decision to change her telephone number as a consequence. During redirect examination, defense counsel
asked, “What observations that you had of [Jefferson] led you to testify that
at one point he was pleasant and another point he was mad? What did you see or hear?†Wyrick answered, “He started threatening me,â€
at which point the court sustained the prosecution’s relevance objection and
ordered that answer stricken. Wyrick
went on to testify (with no objection from the prosecution) that her
communications with Jefferson became hostile.
The court sustained the prosecution’s objection when defense counsel
asked Wyrick whether Jefferson had told her he was angry with appellant because
appellant was her boyfriend.
When
appellant took the stand, he described his interactions with Jefferson,
including a telephone conversation in which he told Jefferson to stop calling
Wyrick and to which Jefferson purportedly responded, “Fuck you, bitch. I’ll kill you.†Appellant also testified that he saw text
messages in which Jefferson threatened to beat appellant up. Appellant did not testify that he knew about
any threats of violence made by Jefferson to Wyrick, and defense counsel never
made an offer of proof that he could give such testimony. Appellant claimed to have beaten Jefferson
because he saw him “flinch†and thought Jefferson was about to hit him.
On
this record, we cannot say that the court abused its discretion by excluding
evidence of Jefferson’s threats to Wyrick.
(See People v. Fuiava (2012)
53 Cal.4th 622, 663-665 (Fuiava).) The defense never offered evidence of such
threats, which would have been relevant only if appellant knew about them. (Spencer,
supra, 51 Cal.App.4th
1219-1220.) No attempt was ever made by
the defense to show that this was the case.
Even
if we assume the defense could have established that appellant knew Jefferson
had threatened Wyrick with harm, reversal is not required. Because the trial court merely rejected some
evidence concerning appellant’s claim of self-defense, and did not preclude him
from presenting that defense, any error is one of state law and is properly
reviewed for prejudice under People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson). (People
v. McNeal (2009) 46 Cal.4th 1183, 1203.)
This standard, which asks whether it is reasonably probable the
defendant would have received a more favorable result absent the error (
here.
Appellant
testified that Jefferson had threatened him with violence, and the jury heard
considerable evidence about Jefferson’s harassing conduct toward Wyrick after
she attempted to end their friendship.
Evidence that Jefferson might have also threatened Wyrick with physical
harm would not have materially altered the jury’s picture of the case. Notwithstanding the history between Wyrick,
appellant, and Jefferson, the evidence was uncontradicted that at the time of the
assault, appellant approached Jefferson and hit him several times, continuing
to do so even after he had fallen to the ground. Appellant’s claim at trial that he saw
something in Jefferson’s hand was never mentioned to the police during the
investigation, and his vague description of a “flinch†by Jefferson was a weak
basis for suggesting that harm was imminent and an assault was justified. Appellant’s self-defense claim was defeated
by the nature of the attack itself (captured on a videotape and viewed by the
jury), and it is not reasonably probable that evidence of an unexecuted threat
against Wyrick (who was not present at the time of the attack) would have
changed the outcome of the trial.
In
his reply brief, appellant argues for the first time that “evidence of
Jefferson’s aggressive behavior towards third parties was relevant, even if
appellant was not aware of those specific acts of aggression. . . .†He cites case law discussing victim character
evidence under Evidence Code section 1103, subdivision (a), which allows a
defendant charged with a violent crime to introduce evidence of specific acts
of violence by the victim to show that the victim has a violent character and
was the aggressor in the current offense.
(People v. Wright (1985) 39
Cal.3d 576, 587; People v. Rowland (1968)
262 Cal.App.2d 790, 797-798.) Appellant
has forfeited this issue by its untimely presentation (People v. Becker (2010) 183 Cal.App.4th 1151, 1156), but we would
also find any error harmless for the reasons just discussed.
2. Failure
to Instruct on Victim’s Prior Threats Against Third Party
The
trial court instructed the jury with CALCRIM No. 3470, which defined
self-defense.
title="">[3] Over defense objection, the court deleted a
paragraph from the form instruction that would have advised the jurors: “If you find that the defendant knew that
[the victim] had threatened or harmed others in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were
reasonable.†Appellant argues that the
court erred in omitting this language and in so doing deprived him of his
constitutional right to present a defense.
We disagree.
A
successful claim of self-defense
requires an actual and reasonable belief in the need to defend against imminent
harm. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) Prior threats or acts of violence by the
victim against the defendant are relevant to show that a reasonable person in
the defendant’s position would have feared imminent harm. (See People
v. Minifie (1996) 13 Cal.4th 1055, 1068-1069.) A victim’s prior threats against a third
person are also admissible to show that the defendant acted reasonably if the
defendant was aware of those threats. (
this effect should be given when supported by the evidence. (Id.
at p. 1220.)
As
discussed in the preceding section, there was no evidence that appellant feared
Jefferson because Jefferson had threatened Wyrick. Though a defense investigator’s report
apparently indicated that at some point Jefferson threatened to “beat
[Wyrick’s] ass,†defense counsel made no offer of proof that appellant was
aware of this remark. Jefferson’s
arguably harassing conduct toward Wyrick—calling her repeatedly, driving by her
home—did not rise to the level of “threats†giving rise to a perceived need to
defend against physical harm.
Even
if Jefferson’s repeated attempts to contact Wyrick could be construed as
threats within the meaning of the omitted paragraph of CALCRIM No. 3470,
reversal is not required. Appellant
testified that he attacked Jefferson because he was afraid Jefferson would
attack him. CALCRIM No. 3470, as given,
advised the jurors that when determining the reasonableness of this belief,
they could consider “all the circumstances as they were known to and appeared
to the defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed.â€
The jurors heard evidence that appellant knew Jefferson was contacting
his girlfriend after she had asked him to stop and they were free to consider
that evidence and its possible effect on his state of mind. (See Spencer,
supra, 51 Cal.App.4th at pp.
1220-1221.) It is not reasonably
probable the verdict would have been more favorable to appellant had the
omitted language of CALCRIM No. 3470 been included. (Id.
at p. 1221 [finding similar omission harmless under state law standard of
prejudice articulated in Watson,
We
disagree with appellant that the court’s refusal to include the paragraph
regarding threats to others implicates appellant’s federal constitutional
rights and requires an analysis of prejudice under the
harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. Assuming this omission adversely
defense. (Spencer, supra, 51
Cal.App.4th at p. 1221.)
3. Cumulative
Error
Appellant
argues that the court’s evidentiary and instructional errors were cumulatively
prejudicial even if they were individually harmless. To the extent we have assumed for the sake of
argument that errors occurred, those errors, considered cumulatively, did not
deprive appellant of a fair trial and do not require reversal. (Fuiava,
supra, 53 Cal.4th at p. 716.)
4.
The
trial court issued a post-trial protective order requiring appellant to have no
contact with Marlon Jefferson for three years.
Although appellant did not object in the trial court, he now argues that
the protective order exceeded the court’s jurisdiction. The People appropriately concede the issue.
Because
this was not a domestic violence case, and because appellant was not placed on
probation, the only conceivable basis for the protective order was
section 136.2. (
378, 382-383; compare § 1203.097.)
Section 136.2, subdivision (a)(4), empowers the trial court to issue a
protective order “upon a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is reasonably likely to
occur,†but such orders are operative only during the pendency of the
orders. (Ponce at pp. 382-383; People
v. Stone (2004) 123 Cal.App.4th 153, 159.)
The protective order must be stricken.
DISPOSITION
The
judgment is modified to vacate the protective order requiring appellant to stay
away from Marlon Jefferson for a period of three years. As so modified, the judgment is
affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
SIMONS, J.
Code unless otherwise indicated.
defense investigator that was lodged as the Court’s Exhibit 1 but was not
presented to the jury in any form.
