P. v. Lottes
Filed 5/24/13 P. v. Lottes CA1/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID BAKER
LOTTES,
Defendant and Appellant.
A135490
(Del Norte County
Super. Ct.
No. CRF12-9082)
I.
Introduction
Appellant
was convicted of battery resulting in serious bodily
appellant hit her on the head and slashed her with a knife. Appellant contends the trial court erred in
failing to instruct the jury that it needed to reach
acts constituted the battery. Appellant
also contends that the trial court should not have permitted the victim to
testify about having been hit on the head, because this evidence was not presented
at the preliminary hearing. Finally,
appellant contends that the trial court should have stricken a witness’s
comments comparing appellant’s appearance to that of Charles Manson, because
they were more prejudicial than probative.
We find no error warranting reversal of appellant’s conviction, and
therefore affirm.
II.
Facts and Procedural Background
The events
leading to appellant’s arrest and conviction occurred during the evening of February 8, 2012, in and near a
trailer occupied by Robert Grimes. The
trailer was located on a ranch in Del Norte County owned by Jerry and Sandra
Webster.
Websters previously had called the police several times because of disturbances
at Grimes’s trailer.
Four people
visited Grimes in his trailer during the evening in question: Roberta Rhodes,
who worked for the Websters as a ranch hand; her husband or boyfriend, Paul
Samples, and appellant and his girlfriend, Paula May Norris,
couple with whom Rhodes was acquainted.
Samples lived with Rhodes in another trailer near
Grimes’s trailer. Rhodes, who normally
did not drink for medical reasons, consumed two 24-ounce bottles of malt liquor
before arriving at the trailer.
There was a
bar located fairly near Grimes’s trailer.
Norris and appellant were not allowed in the bar, and Norris often asked
Samples to buy liquor for her there.
that during the evening of February 8, 2012, Samples agreed to buy alcohol for
Norris, and then delivered it to her at Grimes’s trailer. They related varying versions of how this
came about, however, and gave flatly inconsistent accounts of what happened
after Samples arrived at Grimes’s trailer.
According
to Rhodes, Samples was with her in their trailer when Norris asked him to buy
alcohol for her, and Norris and Samples then left the trailer together. Rhodes stayed and continued to watch
television, but eventually, when Samples failed to return, she became concerned
and went to Grimes’s trailer to look for him.
Rhodes expected to find appellant and Norris at Grimes’s trailer as
well. When Rhodes arrived at Grimes’s
trailer, Samples was not there, but Norris was, along with appellant and
Grimes, who was asleep.
name="_ftnref4" title="">[4] Rhodes asked where Samples was, and then sat
down inside the trailer to wait for him.
Shortly after that, Samples arrived and handed appellant a bottle of
liquor. Both Samples and Rhodes then
told appellant that he and Norris should leave, since the Websters did not want
them to be on the ranch property.
Soon after
Samples arrived at the trailer, he left to go to bed, and Rhodes told him she
would follow him soon. Rhodes was
talking with appellant and Norris, reiterating that they should leave Grimes’s
trailer, when she was suddenly hit on the head and rendered unconscious.
lying on the ground on her back, missing her jacket, her shirt, and one of her
shoes. She felt her leg being stabbed,
and saw appellant standing over her holding a small knife and chanting what
Rhodes described as “Satanic shit.†She
lost consciousness again, but soon revived.
Fearing for her life, she tried to get up, but appellant grabbed her,
told her she was not going anywhere, and cut her again with the knife, this
time on the left side of her torso. She
said, “Please don’t kill me,†and passed out again. The next time Rhodes awoke, she was
alone. Bleeding and fearing for her
life, she ran to the Websters’ house for help, yelling hysterically that “Crazy
Dave†(appellant’s nickname) had stabbed her.
According
to appellant, the course of events was totally different. After appellant and Norris encountered
Samples, Samples went with them to Grimes’s trailer; left briefly to purchase
Norris’s alcohol; and then arrived back at Grimes’s trailer before Rhodes did,
and had a drink with him and Norris.
Rhodes arrived soon after that; immediately punched Samples in the face;
and then attacked Norris.
name="_ftnref6" title="">[6] After a scuffle between the two women,
appellant asked Rhodes why she hit Samples, and urged her to leave along with
Samples, who was in the process of departing.
Rhodes then approached appellant, grabbed at his hair, and tried to
scratch his eyes. As appellant tried to
defend himself, he and Rhodes fell out of the trailer together. Ultimately, appellant succeeded in freeing
himself from Rhodes, and she immediately walked away. Appellant denied having a knife or sharp
instrument in his possession at the time; denied making any witchcraft-related
utterances or conducting a séance; and stated that he tried not to harm Rhodes
in the course of defending himself against her attack.
Norris also
testified that Rhodes arrived at Grimes’s trailer soon after Samples did. According to Norris, an argument then ensued
between Samples and Rhodes, who was angry with Samples for not purchasing any
liquor for her. Rhodes punched Samples
in the nose, and then lunged at Norris, yanking her hair and trying to grab the
bottle. During the ensuing struggle,
Rhodes fell backwards out of the trailer, which angered Rhodes even
further. Rhodes then reentered the
trailer and attacked appellant, grabbing his hair and scratching his face. Rhodes was thrown out of the trailer again
while struggling with appellant, who was trying to defend himself. Finally, Samples offered Rhodes a beer, and
they left together. Rhodes did not
scream or show any signs of injury during the altercation. Soon after that, the Websters arrived and
asked appellant and Norris to leave, and they complied.
Both of the
Websters testified at appellant’s trial.
Sandra said that at around 9:30 p.m. that night, as she was walking from
her house to the barn, she heard “crashes and bangs and thumps†coming from
Grimes’s trailer. She confirmed Rhodes’s
testimony that shortly after that, Rhodes ran to the Websters’ house,
screaming, and pounded on the front door.
Jerry let Rhodes in, and Sandra, who heard Rhodes’s approach from the
barn, arrived soon after that. When
Rhodes arrived at the Websters’ house, she was clothed only in a bra from the
waist up; was wearing only one shoe; and was muddy, scratched, and
bruised. Rhodes was also bleeding from
cuts on her thigh and torso, and kept repeating that she had been stabbed. She looked as though she were going to have a
black eye, and had a knot on the left side of her face.
Sandra
called 911, and she and Jerry spent a few minutes caring for Rhodes. They then left their house, with Rhodes
inside behind a locked door, and walked to Grimes’s trailer to check on him. Sandra intended to confront Grimes’s guests
and “run them off the property,†as she and Jerry had done several times
before. No one responded to the
Websters’ knock on the trailer door, so they opened it, and found appellant
squatting or sitting in front of the wood stove, looking as though he were
about to start a fire. Sandra described
appellant as having “Manson eyes,†and said he “reminded [her] of Manson.†Norris and Grimes were also in the
trailer. Grimes looked as if he had just
emerged from the bedroom or bathroom, and was “stupid drunk†and
incoherent. The Websters told appellant
and Norris that they had to leave. Both
of them initially refused, and Norris argued about it, but appellant eventually
persuaded her that they had to leave because “the man†had arrived.
The
Websters then returned to their house, where they found Rhodes still hysterical
and terrified. She told the Websters
that appellant had knocked her out, held her down, tried to stuff something
like herbs into her mouth, and then stabbed her while standing over her
chanting.
Del Norte
County Deputy Sheriff Enrique Ortega arrived at the ranch around 10:50
p.m. Ortega could not interview Rhodes
initially, because she was hysterical and highly intoxicated. Eventually, Rhodes told Ortega that while she
was at Grimes’s trailer, appellant conducted a séance or witchcraft of some
kind just outside the trailer, in the course of which appellant stabbed her in
the chest with a dagger. Rhodes
repeatedly said appellant had stabbed her, but due to her intoxication, she
could not supply any further details.
Ortega saw
an open three-or four-inch long laceration on Rhodes’s left chest, which was
bloody but not actively bleeding. He did
not examine her face closely, but did not see any specific
showed wounds on Rhodes’s leg, arm, and chest, and revealed that her cheeks
were swollen, and there was redness around her lips. Rhodes was taken to the hospital shortly
after Ortega spoke with her.
Ortega then
tried to interview Grimes and Samples.
Grimes was in his trailer, but was too intoxicated to communicate. Ortega did not see any blood or sign of a
struggle inside the trailer, and could not find a dagger or other sharp bladed
instrument in the area. Samples, who was
also intoxicated and passed out inside his own trailer, was unable to provide
Ortega with any useful information.
Ortega did not observe any injury to Samples’s face.
At around
11:40 p.m., another Del Norte County sheriff’s deputy arrived to assist
Ortega. The two officers went to
appellant’s residence, which was a cottage or shed on the property of William
Hugoboom.
appellant and Norris leaving appellant’s cottage around 9:30 p.m. that evening,
and returning around 10:30 or 10:45 p.m.
According to Hugoboom, at the time the officers arrived, appellant had
been asleep, but was “pretty sober.â€
Appellant
appeared to Ortega to have been drinking, but not to be completely
intoxicated. He admitted having been at
Grimes’s trailer earlier in the evening, but denied stabbing Rhodes. Norris also admitted being at Grimes’s
trailer. She told the officers appellant
did not stab Rhodes, and that if they were going to arrest someone for Rhodes’s
stabbing, it should be her. Norris explained at trial that she did not actually
stab Rhodes, but was angry at Ortega for arresting appellant. The officers arrested appellant.
At the
emergency room, Rhodes was attended to by nurse Jay Hodges, to whom Rhodes
appeared to be still “grossly inebriated.â€
Rhodes repeatedly told Hodges that “This guy tried to kill me.†Hodges determined that Rhodes had lacerations
on her left abdomen and thigh. They were
superficial “slashes†rather than stab wounds, and were not
life-threatening. Both wounds had been
made with a very sharp instrument, like a scalpel. The chest wound was glued closed; the thigh
wound was glued closed, and then possibly sutured by a doctor, though Hodges
did not perform any suturing himself.
Rhodes also had some soft tissue swelling on her scalp near the
forehead, but no obvious head wounds.
According to Rhodes, an area around her temple swelled up the following
day. She also had two black eyes, marks
on her neck, and a “little slice†on her hand that still showed a scar at the
time of trial.
Ortega
tried to obtain a more detailed statement from Rhodes at the hospital, but she
was still too intoxicated to provide one.
John Trombetti, who testified in appellant’s defense and knew Rhodes
slightly, saw her at the hospital that night and described her as looking
“messed up,†as though “she [had been] shot out of a cannon.†Trombetti testified that Rhodes approached
him, and in the course of a “rambling†conversation, told him repeatedly that
two men, one of whom had “wild hair,â€
had dragged her into a cow pasture, threatened to poke her eyes out, and
stabbed her with a large knife like a bayonet or butcher knife. Rhodes denied that she had told Trombetti
this version of the events. She
testified at trial that she told Trombetti it was appellant who stabbed her.
Later that
night, Samples found Rhodes’s jacket and glasses inside Grimes’s trailer, and
her missing shoe outside it. Rhodes’s
green shirt remained missing. However,
the day before appellant’s trial in April 2012, Jerry moved Grimes’s wood box
in order to refill Grimes’s wood supply, and Sandra found a stained, rolled up
shirt, teal green or teal blue in color, stuffed underneath the box.
Appellant
was charged in count 1 with assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)
name="_ftnref9" title="">[9]),
with an enhancement allegation charging infliction of great bodily injury
(§ 12022.7), and in count 2 with battery resulting in serious bodily
injury (§ 243, subd. (d)), with an enhancement allegation charging
use of a deadly weapon (§ 12022, subd. (b)). The jury acquitted appellant on count 1,
and was unable to reach a verdict on the deadly weapon enhancement on
count 2, but convicted appellant on count 2. On May 10, 2012, appellant was granted
four years formal probation, with a condition requiring him to serve a 210-day
jail term. This timely appeal ensued.
III.
Discussion
A.
Failure to Give Unanimity Instruction
Appellant
contends that Rhodes’s testimony described two separate incidents that could
potentially support a felony battery charge, the first being the blow to her
head, and the second being the knife slashes inflicted on her chest and
leg. Based on his characterization of
these as two separate acts, and on the prosecution’s failure to elect between
the two, appellant contends that the trial court erred in failing to give a
unanimity instruction.
It is a
longstanding general principle of criminal procedure that “[w]hen an accusatory
pleading charges the defendant with a single criminal act, and the evidence
presented at trial tends to show more than one such unlawful act, either the
prosecution must elect the specific act relied upon to prove the charge to the
jury, or the court must instruct the jury that it must unanimously agree that
the defendant committed the same specific criminal act. [Citation.]â€
(People v. Melhado (1998) 60
Cal.App.4th 1529, 1534 (Melhado).) The type of jury instruction required by
unanimity instruction. However, when a
criminal charge is based on “ ‘acts . . . so closely connected
that they form part of one and the same transaction,’ †no unanimity
instruction is required. (
408, 412; see also People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1427.)
Here, the
evidence does not indicate that there was any significant lapse of time or
break between Rhodes’s being hit in the head and her being slashed. Thus, there was no evidence that appellant’s
battery of Rhodes was anything other than a single, unified course of
conduct. Therefore, no unanimity
instruction was required.
Appellant’s
reliance on Melhado,
principal authority for this argument is misplaced. In that case, the defendant was charged with
making a criminal threat. The defendant
had taken his car to a repair shop, and the manager refused to return the car
until the defendant paid for the repairs.
Appellant visited the shop on three occasions during a single day. On the first occasion, at 9:00 or 9:30 a.m,
appellant told the manager he would “ ‘blow [him] away’ †if he did
not return the car, and that he was going home to get a grenade. On the second occasion, at 11:00 a.m.,
appellant approached the manager, pulled out a real-looking grenade, and again
threatened to “ ‘blow you away’ †and to “ ‘blow up this
place.’ †When appellant returned
for the third time, at 4:30 p.m., the manager called the police, and the
defendant was arrested. (
order to convict the defendant of making a criminal threat, the jurors must
unanimously agree on the specific act constituting the offense. (Id.
at p. 1532.) Division Three of this
District reversed the conviction, concluding that the defendant’s statements
during each of his first and second visits to the repair shop qualified as a
criminal threat, and that the trial court committed reversible error by failing
to instruct the jury that it had to agree unanimously as to which one of the
acts constituted the charged crime.
facts. In Melhado, the evidence established that there were two separate and
distinct occasions on which the defendant made remarks on which the criminal
threat charge could have been based.
Between those two occasions, the defendant left the scene for over an
hour. As we noted above, here the blow
to Rhodes’s head and the infliction of knife wounds occurred as part of a
single event, closely connected in time and place.
Moreover,
“ ‘[a] unanimity instruction is required only if the jurors could
. . . disagree which act a defendant committed and yet convict him of
the crime charged.’ [Citations.]†(People
v. Beardslee (1991) 53 Cal.3d 68, 93.)
Here, the evidence that Rhodes was slashed by a sharp-edged object was
undisputed; photographs of her wounds were shown to the jury, and both of the
Websters, as well as the emergency room nurse, confirmed that she had
lacerations on her chest and leg. The
only factual issue was how the wounds were inflicted. On that point, the jury could either believe
Rhodes, and find that appellant hit her on the head and slashed her, or it
could believe appellant and Norris, and find that appellant did not harm
Rhodes. There was no evidentiary basis
on which a reasonable juror could have concluded that appellant harmed Rhodes,
but only by hitting her on the
head. Thus, the jurors could not
reasonably have convicted appellant of battery without unanimously finding that
appellant was the person responsible for Rhodes’s lacerations. For all of the foregoing reasons, the trial
court’s failure to give a unanimity instruction was not
of this case.
B.
Introduction of Evidence Not Presented at Preliminary Hearing
The sole
prosecution witness at appellant’s preliminary hearing was Ortega. He related Rhodes’s account of the evening,
including her statement that appellant stabbed her. Ortega did not mention anything at the
preliminary hearing about Rhodes having been hit on the head. As already noted, however, when Rhodes
herself testified at trial, she said she had been hit on the head and knocked
unconscious before appellant slashed her with the knife. Rhodes and other witnesses also testified
that Rhodes had a lump or swelling consistent with her having sustained a blow
to the head. Appellant contends that the
introduction of this evidence was a violation of due process, because it
constituted an alternative basis for his conviction that was not presented at
the preliminary hearing. (See
151, 166-168 (Burnett).)
Respondent
contends that appellant has forfeited this argument due to his trial counsel’s
failure to object to the introduction of the evidence. Appellant counters that if his trial
counsel’s acquiescence constituted a forfeiture, then his counsel rendered
ineffective assistance at his trial. In
the interest of judicial economy, in order to forestall a future habeas corpus
petition, we will exercise our discretion to address this issue on the merits
without determining whether or not appellant’s contention was forfeited. (See People
v. Marlow (2004) 34 Cal.4th 131, 150; People
v. Butler (2003) 31 Cal.4th 1119, 1128; People
v. Chaney (2007) 148 Cal.App.4th 772, 780; see also Burnett, supra, 71
Cal.App.4th at pp. 178-183.)
As
authority for his contention, appellant relies primarily on
In Burnett, the defendant was
charged with possessing and brandishing a .38-caliber revolver during a
confrontation with the parents of two young girls. The evidence at the
defendant had possessed or brandished only a single weapon. At the defendant’s trial, the prosecution
amended the information by striking the description of the gun as a .38-caliber
revolver. The prosecution then
introduced evidence that later on the same day, a friend of the defendant
returned to him, not a .38-caliber revolver, but a different gun, a
.357-caliber revolver, which the friend had been keeping for him. The prosecution told the jury it could
convict the defendant based on his possession of either gun. A divided panel of Division Two of this court
reversed, based on “the clear illegality of prosecuting or convicting appellant
of an offense different from and not
transactionally related to the one shown by the evidence at the preliminary
hearing . . . .†(
This
italicized language in Burnett,
distinguishes it from this case. In
possessions occurred in the presence of different witnesses at different times,
and were not in any way related. Here,
on the other hand, appellant’s battery of Rhodes constituted a single, brief,
continuous incident. Thus, the introduction
of evidence at trial that appellant hit Rhodes on the head as well as slashing
her with a knife did not charge a new or different criminal act. It simply constituted additional evidence
supporting the same battery charge disclosed by the evidence at the preliminary
hearing.
Appellant
also relies on People v. Levy (1973)
31 Cal.App.3d 427. In
narcotics and weapons offenses. No
mention was made at the defendant’s preliminary hearing of any prior convictions. After the defendant’s first trial resulted in
a mistrial, the prosecution amended the information by adding allegations that
the defendant had two prior felony convictions; removing the two previously
charged misdemeanor weapons counts; and adding a new felony count for
possession of a firearm by a felon. The
defendant successfully sought a writ of prohibition precluding him from being
tried on the new felony firearm charge, which was premised on the existence of
the prior convictions.
use of evidence completely unrelated to that presented at the preliminary
hearing to support elevating a misdemeanor to a felony. Accordingly, we are not persuaded that the
trial court erred in permitting the introduction of the evidence that Rhodes
was hit on the head.
C.
Admission of Testimony that Appellant Resembled “Mansonâ€
During her
testimony, Sandra was asked to describe appellant’s “appearance†and “physical
characteristics†at the time she and Jerry went to Grimes’s trailer to ask
appellant and Norris to leave their property.
Sandra responded by recalling that she remarked to Jerry at the time
that appellant had “Manson eyes†and stating that appellant “reminded [her] of
Manson†when he looked at her. Both
defense counsel and the trial judge understood these remarks to refer to the
notorious killer Charles Manson, and the prosecutor admitted as much, though he
disclaimed any advance knowledge that Sandra was going to make such a reference
in her testimony. Appellant’s trial
counsel objected to this testimony, moved to strike it, and moved for a
mistrial. The trial court denied the
motions. Appellant contends this was
error.
Despite
appellant’s attempt to paint the references as “character evidence,†it is
clear from the context that Sandra was describing appellant’s physical
appearance, not his behavior or character.
Accordingly, the evidence was not improper character evidence under
Evidence Code section 1101.
Appellant
also argues that the trial court should have excluded the evidence as more
prejudicial than probative under Evidence Code section 352. Assuming for the sake of argument that this
point was preserved by trial counsel’s motion to strike and for a mistrial, we
review the trial court’s ruling for abuse of discretion. (People
v. Anderson (2001) 25 Cal.4th 543, 591; People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
“When asked to exclude evidence as more prejudicial than probative
. . . , the trial court has broad discretion. Its ruling will not be disturbed on appeal
unless the prejudicial effect of evidence so admitted clearly outweighed its
probative value. [Citations.]†(People
v. Anderson, supra, 25 Cal.4th at
p. 591.) Similarly, whether the
admission of such evidence due to a witness’s unanticipated remark warrants
granting a mistrial or giving a curative instruction is also an issue committed
to the discretion of the trial court. (
1575, 1580-1581.)
In the
overall context of the evidence adduced at appellant’s trial, we are not
persuaded by appellant’s argument that Sandra’s brief, passing references to
appellant’s perceived physical resemblance to Manson were inflammatory or
highly prejudicial. Accordingly, we
perceive no abuse of discretion or reversible error in the trial court’s denial
of appellant’s motions to strike and for a new trial.
IV.
Disposition
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
will refer to Jerry and Sandra Webster by their first names.
Norris Sanderson, but she was referred to as Norris during trial and in the briefs
on appeal. We will refer to her as
Norris.
