People v. Greer

THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS SEAN GREER, Defendant and Appellant.

B305324

California Court of Appeals, Second District, Eighth Division

July 9, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA480624 Craig Richman, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.

Bess Stiffelman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

OHTA J. ^[*]

A jury convicted appellant Nicholas Sean Greer of making a criminal threat in violation of Penal Code section 422, subdivision (a)^[1] and found true that appellant personally used a deadly and dangerous weapon as alleged under section 12022, subdivision (b)(1). The jury acquitted appellant of an assault with a deadly weapon under section 245, subdivision (a)(1). In a bifurcated proceeding to address prior conviction allegations, the trial court found the strike prior alleged under sections 667, subdivision (d) and 1170.12, subdivision (b), as well as the five-year prior under section 667, subdivision (a), to be true. The trial court sentenced appellant to the high term of three years doubled because of the strike prior, and added one year for the weapon allegation for an aggregate term of seven years. Appellant filed a timely notice of appeal.

On appeal, appellant contends: (1) the trial court erroneously excluded relevant evidence critical to his defense in violation of his state and federal constitutional right to present a defense; (2) the trial court provided the jury with an instruction on the weapon enhancement that contained a misstatement of the law and failed to provide the necessary guidance to determine if the object was a deadly or dangerous weapon; and (3) the trial court's imposition of $510 worth of punitive fines and fees violated his right to due process. We find merit in appellant's second contention and reverse the true finding on the weapon enhancement. The judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution's Case

Appellant and the victim, Edwin Kearney^[2] are half brothers. On August 22, 2019, Edwin was at his parents' one bedroom apartment with his son, Elijah, who was playing a video game when appellant walked in. According to Edwin, appellant appeared to be “spaced out a little bit.” He wanted to use the shower, and asked Edwin for a clean towel and hair clippers, which Edwin provided. At this point, the conversation was cordial, but Edwin felt uncomfortable.

After getting out of the bathroom, appellant began to ask Edwin a series of family-related questions, such as whether their mother was at work. Appellant's tone became aggressive as the conversation continued. Appellant asked Edwin whether Edwin could make a copy of a key to their mother's apartment. Edwin told appellant that he did not have the right to do that since it was not his apartment. Appellant became increasingly upset. Edwin told his son, Elijah, to get behind him just in case something occurred.

Appellant began cussing at Edwin, calling him a “faggot” and a “bitch-ass nigger.” Edwin asked appellant to calm down - that his son Elijah was there, and to leave in peace. Appellant told Edwin that he was not going anywhere. Appellant took a fighting stance, made a fist, and made threatening comments about knocking him out and killing him. Edwin stood up and told appellant he would defend himself. Appellant went to the kitchen to grab a knife from the kitchen drawer. He came back and stood about three feet from Edwin, holding the knife in his right hand at chest level while in a fighting stance. Appellant threatened to kill Edwin multiple times as he swung the knife side to side as if he was toying with Edwin. Edwin felt afraid based on: (1) prior assaultive encounters with appellant, (2) the perceived credibility of the threat, and (3) a desire to protect his son, Elijah, from appellant.

Edwin noticed the front door was ajar. He and Elijah ran out the door to their neighbor's apartment. Once inside, he locked the door to keep appellant out. Appellant followed Edwin and Elijah to their neighbor's apartment and continued his threatening comments from the other side of the door. Edwin called his father and 9-1-1.

In the 9-1-1 call, Edwin told the operator that appellant “tried to stab me.”

When Officer Lisa Ruiz of the Los Angeles Police Department arrived at the apartment complex, she saw appellant standing in the threshold of the door to the complex. Appellant was argumentative and did not immediately comply with the officer's commands. Ultimately, he complied and was detained.

Edwin was interviewed by Officer Nodes in Officer Ruiz's presence. Officer Ruiz noted that Edwin was sad, crying, and emotional. Elijah was interviewed by Officer Ruiz separately. Both interviews were recorded. Officer Nodes accompanied Edwin back to the apartment for further investigation. A photograph of the knife was taken, but the knife was not recovered as evidence.

Appellant's Case

Appellant testified on his own behalf. He explained he does not stay at his mother's apartment but sleeps there on occasion keeps his property there, and uses the apartment as his address. On August 22, 2019, appellant went to the apartment to see his family and to take a shower.

After the shower, appellant and Edwin engaged in conversation which escalated into an argument. Appellant could not recall what the argument was about, but said it was not about a key. Edwin was yelling. They were insulting each other. Edwin stated, “There is guns all around the house. I have somebody coming here to do something to you.” Appellant did not feel afraid because Edwin “always lies.” As the argument continued, Edwin said, “I got something for you. I'll be back.” Edwin and Elijah left together.

When appellant attempted to leave the apartment complex, he was met by the officers from the Los Angeles Police Department. The officers handcuffed and placed him in the police vehicle. Appellant testified he never threatened to kill Edwin nor did he confront him with a knife. He further denied having physical confrontations with Edwin in the past.

During the ride from the apartment to the police station, Officer Ryan Cadiz spoke with appellant. The conversation was recorded. Appellant asked Officer Cadiz the reason for his arrest. Officer Cadiz explained that he was being arrested for a “245” and that he “was carrying a knife.” Appellant explained that he was “in the kitchen picking up a knife to do something.”

DISCUSSION

I. Exclusion of Alisha Kearny's Potential Testimony

Appellant contends the trial court erroneously excluded relevant evidence critical to his defense in violation of his state and federal constitutional rights, requiring reversal of his criminal threat conviction. We disagree.

A. Legal Principles

“In determining the admissibility of evidence, the trial court has broad discretion. Thus, it is within the court's discretion whether or not to decide admissibility questions under Evidence Code section 402, subdivision (b)[.] [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 196.)

Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)

“On appeal, a trial court's decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion. [Citations.]” (People v. Williams, supra, 16 Cal.4th at p. 197.) “In contrast to errors having a basis in the federal Constitution, the so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice. [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 801.) “[A] ‘miscarriage of justice' should be declared only when the court, ‘after an examination of the entire cause, including the evidence,' is of the ‘opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Issues involving constitutional rights of the accused are generally reviewed independently. (People v. Cromer (2001) 24 Cal.4th 889, 894.) When it relates to the admission or exclusion of evidence, the “ ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The California Supreme Court has explained “that only evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.)

The standard for assessing prejudice for federal constitutional errors is the “harmless beyond a reasonable doubt” test under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) “Under Chapman, a federal constitutional error is harmless when the reviewing court determines ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.] When there is ‘ “a reasonable possibility”' that the error might have...