Opinion
B292719
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. GEORGIA BARATTA-YOUNG, Defendant and Appellant.
Christine M. Aros, 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, Acting Senior Assistant Attorney General, Michael C. Keller and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA073934) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed. Christine M. Aros, 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, Acting Senior Assistant Attorney General, Michael C. Keller and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Georgia Baratta-Young poisoned her landlord's dog, Buckey, in an attempt to kill the animal, and pointed a knife at her landlord, Rodney Leonard, when he returned home shortly thereafter. At her preliminary hearing on charges of animal cruelty and assault with a deadly weapon, appellant testified that she had poisoned Buckey in order to protect her live-in companion, whom Buckey had bitten several weeks earlier, and that she had pointed a knife at Leonard in order to defend herself from him. She and her companion testified that about seven hours before the charged assault, Leonard had attempted to force his way into their bedroom and had threatened to kill appellant. Prior to trial, the court excluded all evidence of this "morning incident" on the grounds that it was irrelevant and would confuse the issues.
At trial, Leonard and his girlfriend, Carla Guice, testified that Leonard did not approach or threaten appellant at the time she pointed the knife at him. Appellant testified that Leonard repeatedly "came at" her, but admitted he did not threaten her, come closer than eight feet from her, or raise his fists. The jury viewed a video filmed by Guice in the immediate aftermath of appellant's confrontation with Leonard, which captured appellant holding two knives and repeatedly urging Guice to "bring it," offering to turn her back to Guice, and telling Guice that appellant had not only threatened to kill Buckey, but had actually killed the dog. A jury rejected appellant's self-defense claim and convicted her of assault with a deadly weapon and animal cruelty. At sentencing, the court imposed a restitution fine and assessments to which appellant did not object.
On appeal, appellant contends: (1) the trial court prejudicially erred by excluding evidence of the morning incident; and (2) the court violated her due process rights by imposing a restitution fine and assessments without determining her ability to pay. As explained below, we find that while the court erred in excluding evidence of the morning incident, the error was not prejudicial. We further conclude that appellant has forfeited her challenge to the restitution fine and assessments. Accordingly, we affirm.
STATEMENT OF THE CASE
The state charged appellant with assault with a deadly weapon, viz., a knife (Pen. Code, § 245, subd. (a)(1)) (count one); criminal threats (id., § 422, subd. (a)) (count two); and felony animal cruelty (id., § 597, subd. (a)) (count three). The day before trial, the state voluntarily dismissed a misdemeanor charge of poisoning an animal. For purposes of sentence enhancements on the assault and threat counts, the state alleged that appellant had served a prior prison term (id., § 667.5, subd. (b)). At arraignment, the court accepted appellant's waiver of her right to counsel under Faretta v. California (1975) 422 U.S. 806 and permitted appellant to represent herself. The court appointed standby counsel.
The jury convicted appellant of the assault and animal cruelty charges; it acquitted her of the criminal threats charge. The court, finding good cause, struck the allegation of a prior prison term.
The trial court sentenced appellant to a total prison term of three years and eight months, consisting of a three-year term on the assault conviction and an eight-month term on the animal cruelty conviction. The court imposed a $300 restitution fine, a total of $80 in court operations assessments, and a total of $60 in criminal conviction assessments.
Appellant timely appealed the judgment.
PROCEEDINGS BELOW
A. Prosecution Case
1. Animal Cruelty
Rodney Leonard lived in a three-bedroom house with his pit bull, Buckey. He also shared the house with tenants to whom he rented the spare bedrooms. Around March 2018, he rented one of the bedrooms to appellant and John Conkle. On May 6, Buckey bit Conkle's hand. Leonard testified that Buckey had never bitten a resident before. Leonard had never seen Buckey bite, attempt to bite, or growl at either Conkle or appellant. Leonard's girlfriend, Carla Guice, similarly testified that she had never seen Buckey bite or otherwise act aggressively toward any resident.
Appellant testified that she was Conkle's caregiver, but also that they shared finances and took care of each other.
In her preliminary hearing testimony, which was recounted at trial by a Los Angeles County Sheriff's Department detective who had witnessed it, appellant admitted that on May 30, 2018 (about three weeks after Buckey bit Conkle), she put Benadryl in chicken and fed it to Buckey in an attempt to "put [her] down."
Leonard testified that he took Buckey to a veterinarian the same day because she seemed strange and weak. The veterinarian testified that he treated Buckey immediately (despite Leonard's inability to pay) because she presented as a critical patient. Buckey was bleeding from her rectum and "frothing from the mouth," and her temperature was "way too high for any normal body." He thought then that Buckey might die, and believed at the time of trial that there was a strong chance she would have died had she not received treatment. Though he believed it was possible she suffered no long-term damage, he acknowledged her symptoms might have weakened her even after recovery. Leonard and Guice testified that Buckey had been less active after the incident.
2. Assault with a Deadly Weapon
Leonard had a pacemaker. After moving into Leonard's home, appellant informed Guice that she had a "bone stimulator" that could harm Leonard by disabling his pacemaker, and Guice informed Leonard of this.
Appellant testified that her bone stimulator is a device designed to stimulate her bones to grow over plates that had been implanted into her spine as treatment for a disability.
Leonard testified that on May 30, 2018, Leonard and Guice left Leonard's home in the morning and returned around 4:30 p.m. Though Leonard never locked his doors and never gave tenants keys (believing Buckey was adequate protection for the home), they discovered the front door was locked. Leonard entered through the back door instead. Upon his entry, appellant came toward him from the nearby kitchen (closing the distance between them to about seven feet) with her bone stimulator and a knife. Holding the knife "like a stab," appellant said, "'I'm go[ing to] kill you.'"
Leonard was unarmed and did not threaten appellant. He called for Guice, who came to the back yard within seconds. He was afraid for himself and for Guice. Guice recognized the bone stimulator and told Leonard to wait for the police at the front of the house. He went to the front, discovered Conkle returning home, and waited there with Conkle until police arrived about 15 minutes later, in response to Guice's 911 call.
Guice testified that she went to the back yard when Leonard yelled for her. Upon her arrival, she observed appellant holding knives and "yelling something" while Leonard stood about 10 feet away, filming the events with his cell phone. Appellant threatened to use her bone stimulator to disable Leonard's pacemaker if he came near her. Guice did not hear Leonard threaten appellant, see him move toward her, or see him make a threatening gesture. Leonard appeared afraid.
Guice took Leonard's cell phone from him, told him to leave, and continued filming. While filming, she called 911 with her own phone. Recordings of her 911 call and a portion of the video were played for the jury. At the beginning of the video, appellant -- evidently referring to her bone stimulator and Leonard's glass rear door -- said, "I don't know if it goes through glass or nothing . . . and I don't care." She claimed Leonard was threatening her. Guice told the 911 dispatcher that appellant was trying to kill Leonard and they needed help. Appellant responded, "Yeah, and you can't fucking get it, bitch." After an exchange of taunts, appellant said, "I'm not going to be threatened in the house I live in!" Guice responded, "Ain't nobody threatening you!" Appellant replied, "Bullshit. I was locked in my fucking room. I've been locked in my fucking room for two fucking months."
We have reviewed transcripts of the audio recorded on the video and call.
Appellant's claim to have been locked in her room referred to her voluntary attempts to avoid Leonard; during closing arguments, she asserted, "Any time he was in the house, I'm locked in my room. . . . I stayed in my room for two months to avoid this man because he was aggressive, and he wasn't listening." Guice contradicted appellant's claim, testifying that she had seen appellant move around the house and entertain visitors during those months.
Soon thereafter, appellant said, "You want a standoff until the marshal rolls? While the dog dies, because I had to kill the bitch." Guice informed the dispatcher that appellant had threatened to kill her dog. Appellant responded, "I didn't threaten. . . . I did it." Guice wondered aloud if appellant had done something to the dog. Without specifying that she had given Buckey Benadryl or otherwise clarifying what she had done, appellant responded, "Do I have a fucking choice, with a pit bull biting a 72-year-old man? [¶] . . . [¶] And you won't keep the fucking gate up, bitch. You're [an] accessory to attempted murder." As Guice continued speaking with the dispatcher, appellant said, "The marshal's coming. So bring a cop over here to false arrest me in the fucking house I live in. Because I'm going to stand here and fucking defend myself. Step in here. Step the fuck in here. Come on, bitch. [¶] . . . [¶] . . . Bring it the fuck on!" Guice responded, "You're the one talking all the stuff. No one's even bothering you, sweetie." Appellant replied, "Yeah, sweetie. [¶] . . . [¶] Let's see how sweet you are when you're somebody's prison bitch. You stupid cunt. Come on over here. I'll even turn my back on you." Guice told the dispatcher that appellant was "jumping up and down with two knives in her hands." Soon thereafter, police officers arrived and Guice informed the dispatcher that appellant put the knives down.
B. Defense Case
1. Proffered Evidence Regarding Morning Incident
At the preliminary hearing, appellant and Conkle both testified that Leonard and Guice came to their bedroom around 9:30 a.m. on May 30, 2018 (the day of the charged offenses). Appellant testified, "As [Leonard] attempted to enter the bedroom, I attempted to close the door. He attempted to force his way in, and I heard the wood breaking, and I heard the hinges giving way, the hinges on the door giving way. I threw my elbow on the door because he was overpowering me. I closed the door, and I locked it." Leonard yelled that he would kill her, that Guice would kill her, and that they would beat her ass. Conkle similarly testified that Leonard, "in a rage," tried to force the door open, cracked the doorframe, and yelled, "'Let me in, or I am going to kill you!'" Conkle further testified that he drew a knife and was prepared to stab Leonard if he broke through the door. Appellant submitted photographs of injuries to her shoulder allegedly sustained during this morning incident.
At a hearing on the prosecution's motions in limine -- presided over by the trial judge -- the court excluded all evidence regarding the morning incident on the grounds that it was irrelevant and would confuse the issues, stating, "We're going to try the charges in this case. We're not going to try what happened a month ago, that morning, or any other time." Appellant argued the evidence was relevant to her state of mind at the time of the charged assault, but the court reasoned that the morning incident was too remote from the charged assault to be relevant. The court subsequently reminded appellant of its ruling several times and struck testimony related to the morning incident.
2. Defense Witnesses
Conkle testified that on May 6, 2018, Buckey bit his hand while he was petting her. He received a tetanus shot and his hand was bandaged for about two weeks, but the injury did not require surgery or stitches. Buckey had attempted to bite him before. However, Buckey never bit or otherwise attacked him again, and he still lived in Leonard's home.
Two employees of the Los Angeles County Department of Animal Care and Control testified about Conkle's bite and the department's response. One employee responded to Leonard's home on the day of the bite and advised Leonard to separate Buckey from other people for 10 days. She and the other employee, the executive assistant to the department's director, testified that the department had no authority to remove Buckey from Leonard's home. On cross-examination, the executive assistant opined that Conkle's bite was minor, relying on a picture of the bite and his experience in enforcing administrative rules regarding vicious or potentially dangerous dogs.
Appellant, representing herself, testified in narrative form. She claimed Buckey was aggressive every time appellant or Conkle walked past her and every time somebody appeared at the front door. She further claimed Leonard "got very upset" when she tried talking with him about issues around the house. Explaining that she had left Leonard handwritten notes asking him to buy Buckey food, to close the toilet lid, and to refrain from leaving food on the counter, she testified, "Every time I went to speak to this man, he was aggressive and abusive. And each time it got worse -- just because I'm asking to not leave food on the counter; don't leave the toilet lid open. I had problems with the electricity shutting off Mr. Conkle's oxygen, so I had to address him on multiple occasions. Before this incident [i.e., the charged offenses], I stayed in my room because I didn't want to confront him at all."
Appellant further testified that on May 30, 2018, about five minutes after Conkle left Leonard's home to get something to eat, Buckey went into a frenzy in response to an unidentified stranger "ringing the door bell, kicking the security gate, rattling it and kicking it, and tapping on the window trying to get into the house." Exhibiting an unprecedented level of aggression, Buckey was "jumping on the sofa, growling, snapping, barking." Appellant, fearing that Buckey would attack the stranger if she opened the door, locked the door and closed the blinds on the nearby window. Fearful of Leonard, who she believed was in his bedroom, appellant retrieved her bone stimulator. Appellant then laced food with Benadryl -- in a quantity she thought sufficient to kill Buckey -- and brought it to Buckey in the back yard.
Appellant claimed she poisoned Buckey to protect Conkle, testifying, "I had to. Mr. Conkle was coming back, and that dog was fired up -- running all over the yard, barking, trying to get out the gate." After poisoning Buckey, appellant attempted to call Conkle to warn him against reentering the house, but -- in part due to nerve damage in her hands -- dropped her cell phone, which broke. Intending to take the battery out of her phone, she went to the kitchen, set her bone stimulator on a counter, and searched through a drawer for a small knife, setting larger knives on the counter.
On cross-examination, appellant claimed she could not have waited in front of the house to warn Conkle about Buckey's agitation, rather than poisoning Buckey, because Buckey would have escaped and endangered others if she had opened the front door. But she also testified that she was not in fear for her life at that time because Buckey was nowhere near her. She confirmed she was not afraid of Buckey when she fed her the Benadryl. At the time of trial, she still believed Buckey was dangerous, and still wanted Buckey dead.
In the midst of her search, Leonard appeared at the back door. Appellant described her response as follows: "Like I said, I thought he was home. So to have him come in the back door, I was scared. Here he is and he's coming at me. [¶] And I grab my bone stimulator, and I said, 'Back up. All I have to do is push this button and your pacemaker will shut off. Back up. Don't come at me.' He refused to back up. His girlfriend [Guice] said, 'Go. Get out of here.' . . . We have a window to my left. I see Mr. Leonard walk that way. Now I feel comfortable; although, the girlfriend is screaming at me . . . ." Guice threatened to "'beat [her] ass.'"
According to appellant, Leonard returned to the back door. Appellant again described her response: "When he comes to the back door and he comes at me, I grab -- I still have the bone stimulator. I grab a knife because it was on the counter. 'Back up. Don't come near me or I'll kill you.'" Leonard was filming her with his cell phone. He was "still coming at [her]," but after Guice again told him to leave, he handed Guice his phone and left. For several minutes, appellant argued with Guice, who was demanding to know why she had locked the front door but giving her no opportunity to explain.
Appellant testified Leonard returned to the back door again. "That's when I grabbed the second knife. Now I have two knives. He's still coming at me. He's trying to come in the house past her, and he's coming at me, and he's extremely agitated. He's yelling at me. She's telling me, 'If I didn't have to worry about my job, I would beat your ass,' 'I want to beat your ass,' 'I want to kill you.'" Leonard left for a final time. Appellant testified that she was afraid of Leonard because of his superior size, his aggressive responses to her earlier attempts to talk to him about issues around the house, and his persistence in "coming at [her]" despite her holding the bone stimulator and knives. She claimed that before the police arrived, she repeatedly told Leonard and Guice to take Buckey to the veterinarian.
In the audio recorded on the video and the 911 call, appellant did not tell Leonard or Guice to take Buckey to a veterinarian. Nor did Guice say she wanted to kill appellant. Though Guice said she wanted to "beat [appellant's] ass," she said so only after the police arrived.
On cross-examination, appellant testified that Leonard did not threaten her when he first came at her, instead only "yelling why did I lock the door and close the blinds." Even when he again came at her, he did not threaten her; only Guice threatened her, after first yelling about why she locked the door and closed the blinds. Leonard did not raise his fists. He did not swing at her, and could not have swung at her because he never came closer than eight feet from her. He was unarmed.
C. Jury Instructions and Closing Arguments
The court instructed the jury (per CALCRIM No. 3470) that a finding of lawful self-defense required, inter alia, findings that appellant reasonably believed that: (1) she was in imminent danger of being touched unlawfully or of suffering bodily injury; and (2) she needed to use force immediately to defend against that danger. It further instructed the jury, "When deciding whether the defendant's beliefs were reasonable, 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."
The court expressly declined to instruct the jury with the following language from CALCRIM No. 3470: "If you find 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." The court acknowledged that it had excluded the only proffered evidence that Leonard had made previous threats, viz., evidence of the morning incident.
The prosecutor argued appellant's poisoning of Buckey satisfied the animal cruelty charge. She argued that appellant's pointing of a knife at Leonard satisfied the assault with a deadly weapon charge. She characterized the "true theme" of the instruction on self-defense as the question, "Is it reasonable?" She argued appellant's alleged belief in the need for self-defense was unreasonable, explaining, "She may have believed that day that she was being threatened and that she had to defend herself. She may believe today that she was being threatened and that she had to defend herself. But that's not true. It's not what the evidence shows."
Appellant argued she acted lawfully in poisoning Buckey in order to defend Conkle and herself. She argued she acted lawfully in pointing a knife at Leonard because she acted in self-defense, explaining, "I testified I was afraid. And I think any reasonable person would have been. Mr. Leonard is [six feet two inches tall], 250 pounds. I'm [five feet four and one-half inches tall] and disabled. And he outweighs me by 100 pounds. He's coming at me. I've had bad interactions with him in the past where I can't even leave a polite or funny note that he's leaving food on the counter for the mice, and he gets all angry just like he did on the witness stand." She further explained, "I'm scared. . . . He's coming at me repetitively. [Guice] is telling me she wants to beat my ass. [¶] I have the person at the door, and then I had the dog, and then I had the phone breaking, then I had Mr. Leonard at me, I have [Guice] threatening me, one incident right after the other. Of course I'm scared."
In rebuttal, the prosecutor played the video and asked, "Is that a reasonable person on that video? Is that what a reasonable person does?" Acknowledging that appellant could be heard screaming about defending herself, the prosecutor argued any such belief was unreasonable, asserting that a reasonable person in appellant's position would have walked away. She further argued that appellant had "exaggerate[d] and manipulate[d] the truth" throughout the trial, citing several examples of evidence that she asserted contradicted appellant's testimony.
D. Verdicts and Sentencing
The jury convicted appellant of the assault and animal cruelty charges, but acquitted her of the criminal threats charge. At her sentencing hearing, appellant informed the court that she was not sorry for pointing the knives. She maintained that if she had not pointed them, Leonard and Guice would have "beat [her] up," as they had threatened to do during the morning incident. The trial court sentenced appellant to a three-year term on the assault conviction and a consecutive eight-month term on the animal cruelty conviction. The court imposed a restitution fine and assessments.
DISCUSSION
Appellant contends: (1) the trial court prejudicially erred by excluding evidence of the morning incident; and (2) the court violated her due process rights by imposing a restitution fine and assessments without determining her ability to pay.
A. Exclusion of Evidence of the Morning Incident
1. Principles
Any person "about to be injured" by an offense against his person may defend himself through "[r]esistance sufficient to prevent" the offense. (Pen. Code, § 693.) "[S]elf-defense is established when the defendant has an honest and reasonable belief that bodily injury is about to be inflicted on him, provided he uses force no greater than that reasonable under the circumstances." (People v. Casares (2016) 62 Cal.4th 808, 846 (Casares), disapproved on another ground by People v. Dalton (2019) 7 Cal.5th 166.) "'Because [the defendant's] state of mind is a critical issue, he may explain his actions in light of his knowledge concerning the victim.'" (People v. Bates (2019) 35 Cal.App.5th 1, 10 (Bates).) Thus, "[a] defendant charged with assaultive crimes who claims self-defense may present evidence that the alleged victim had previously threatened him." (People v. Minifie (1996) 13 Cal.4th 1055, 1060 (Minifie).) The defendant's knowledge of the victim's prior threats is relevant not only to the defendant's belief in the need for self-defense, but also to the reasonableness of that belief. (See id. at 1065-1071; Bates, supra, at 10; cf. People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 750-751 (Sotelo-Urena) [expert testimony "explaining why a chronically homeless individual would experience a heightened fear of aggression" was relevant both to chronically homeless defendant's actual belief in need for self-defense and to reasonableness of that belief].) "[E]ven threats from the victim, however, do not alone establish self-defense." (Minifie, supra, at 1068.) The threats must be followed by overt behavior that, when interpreted in light of the prior threats, places the defendant in reasonable fear of imminent harm. (See id. at 1068-1069.)
"'[O]f course, a defendant's evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 [only relevant evidence is admissible] and 352.'" (Minifie, supra, 13 Cal.4th at 1070.) Under Evidence Code section 352, a trial court has discretion to 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." "The evidence barred by Evidence Code section 352 is evidence that uniquely causes the jury to form an emotion-based bias against a party and that has very little bearing on the issues of the case." (People v. Thornton (2007) 41 Cal.4th 391, 427.) "'Remoteness' or 'staleness' of prior conduct is an appropriate factor to consider in a section 352 analysis." (People v. Harris (1998) 60 Cal.App.4th 727, 739.) We review a trial court's ruling under Evidence Code section 352 for an abuse of discretion. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1449.)
Because we find error under the abuse of discretion standard, we need not address appellant's contention that a less deferential standard of review applies.
Erroneous exclusion of defense evidence violates the defendant's federal constitutional right to present a defense if it amounts to a "'complete preclusion'" of a defense. (Sotelo-Urena, supra, 4 Cal.App.5th at 756, quoting People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4; see also People v. Abilez (2007) 41 Cal.4th 472, 503 (Abilez) [application of state evidence law violates constitutional right to present defense only in "extraordinary and unusual" circumstances].) Typically, however, the erroneous exclusion of defense evidence violates only state law and is reviewed for prejudice under the standard established in People v. Watson (1956) 46 Cal.2d 818, requiring reversal only if it is reasonably probable that the defendant would have obtained a more favorable result had the evidence been admitted. (See Sotelo-Urena, at 756.)
2. Error
We agree with appellant that the trial court abused its discretion by excluding evidence of the morning incident. Appellant's alleged knowledge, at the time of the assault, that Leonard had threatened her earlier that day (while attempting to force his way into her and Conkle's bedroom) was relevant to her belief in the need to defend herself against Leonard and to the reasonableness of that belief. (See Bates, supra, 35 Cal.App.5th at 10; Minifie, supra, 13 Cal.4th at 1065-1071.) The passage of seven hours (from 9:30 a.m. to 4:30 p.m.) did not render the morning incident so remote from the assault as to be irrelevant to appellant's state of mind. (See People v. Shoemaker (1982) 135 Cal.App.3d 442, 445, 448, fn. 4 (Shoemaker) [victim's violent acts two-and-a-half months after defendant's crime, offered to show victim was aggressor at time of crime, were "obviously" not so remote as to be irrelevant]; cf. People v. Whisenhunt (2008) 44 Cal.4th 174, 205 [passage of seven and 10 years between defendant's prior acts of child abuse and charged murder did not significantly lessen those prior acts' probative value regarding whether defendant acted intentionally in murdering child].)
We further conclude exclusion of evidence of the morning incident was not warranted under Evidence Code section 352. The evidence would have "'illuminated'" the issue of appellant's state of mind, rather than confused it, without any "'"unique tendency" to evoke any emotional bias against the prosecution.'" (Minifie, supra, 13 Cal.4th at 1071.) Moreover, there is no indication that presenting the evidence would have consumed substantial time; all the witnesses to the morning incident testified at trial and could have addressed the incident in brief additional testimony. In short, we conclude the trial court abused its discretion by ruling that any permissible considerations under Evidence Code section 352 substantially outweighed the evidence's probative value.
The Evidence Code section 352 cases on which respondent relies are distinguishable. (See People v. Jones (2003) 30 Cal.4th 1084, 1108-1109 [affirming exclusion of public defender's testimony that probation for armed robbery was rare, offered to impeach witness by showing he obtained favorable plea bargain in exchange for testifying against defendant; testimony was "not particularly probative" without specifics of witness's bargaining position, which would confuse issues and unduly consume time]; Shoemaker, supra, 135 Cal.App.3d at 449-450 [affirming exclusion of victim's subsequent violent acts, offered to prove victim's violent character at time of defendant's crime, where acts would have been cumulative of "ample" other evidence of victim's violent character].)
The exclusion of evidence of the morning incident violated only state law, not appellant's federal constitutional rights. (See Sotelo-Urena, supra, 4 Cal.App.5th at 756 [defendant's federal constitutional right to present defense was not violated by exclusion of expert testimony relevant to defendant's belief in need for self-defense and to reasonableness of that belief].) Though appellant asserts the exclusion deprived her of an opportunity to present a "full and complete" defense, she does not claim the exclusion amounted to a complete preclusion of a defense. Nor could she. She was permitted to support her self-defense claim with testimony about her state of mind at the time of the assault and facts that influenced it, including Leonard's contemporaneous conduct and his history of allegedly aggressive interactions with appellant. We find no extraordinary circumstances of the type necessary to elevate the trial court's garden-variety evidentiary error into a federal constitutional violation. (See Abilez, supra, 41 Cal.4th at 503.)
3. Prejudice
The record below persuades us the trial court's state-law error in excluding evidence of the morning incident was not prejudicial. Even had the evidence been admitted, we conclude the jury would have been satisfied beyond a reasonable doubt that Leonard's conduct at the time of the assault was not so aggressive as to prompt a reasonable person in appellant's position to believe it necessary to point a knife at him to defend against imminent harm. (See Casares, supra, 62 Cal.4th at 846.) According to Leonard and Guice, Leonard did not threaten appellant, arm himself, or move toward appellant. Appellant herself conceded that Leonard neither armed himself nor threatened her, and she further conceded that he never raised his fists. Though she claimed he repeatedly "came at" her, she did not specify any overt acts other than movement in her direction (into his home, no closer than eight feet away from her) and yelling at her for locking the door. Moreover, the first time Leonard allegedly approached her angrily, he left, and she testified she felt "comfortable." She picked up the first knife only upon his return -- around the same time he started filming with his cell phone. There was no evidence Leonard engaged in increasingly aggressive behavior upon his return that would prompt a reasonable person to view pulling a knife as necessary self-defense rather than escalation of the confrontation. On the contrary, Leonard's decision to start filming appellant around that time implied that she was the aggressor.
Indeed, the jury viewed powerful evidence of appellant's aggression: the video filmed by Guice in the immediate aftermath of appellant's confrontation with Leonard. (Cf. People v. Brady (2018) 22 Cal.App.5th 1008, 1011 ["the jury may have determined that any threat to [the defendant] was not imminent or that the force he used was unreasonable given that video surveillance showed [the defendant] acting more aggressively than his victim"].) Near the beginning of the video, Guice told the 911 dispatcher that appellant was trying to kill Leonard and they needed help. Rather than dispute Guice's claim or explain that she was the one who needed help, appellant said, "Yeah, and you can't fucking get it, bitch." Similarly, after Guice stated that nobody had done anything to appellant or threatened her, appellant claimed to have locked herself in her room for two months (necessarily beginning well before the morning incident), without mentioning anything about Leonard's conduct that day. Throughout the video, appellant taunted Guice in a manner that a reasonable person would have understood might incite danger rather than defend against it -- including telling Guice to "bring it," offering to turn her back to Guice, and telling Guice that she had not merely threatened to kill Buckey, but had actually done so. Though she directed these taunts at Guice rather than Leonard, she knew Leonard was nearby and had reason to expect that such behavior toward his girlfriend and his dog might provoke him. Her willingness -- even eagerness -- to risk provoking a confrontation strongly suggested that Leonard's conduct during the incident moments before had not been so aggressive as to prompt a reasonable person to believe it necessary to pull a knife on him.
In sum, we are confident that even had evidence of the morning incident been admitted, the near-contemporaneous evidence would have persuaded the jury beyond a reasonable doubt that a reasonable person in appellant's position at the time of the assault would not have believed it necessary to point a knife at Leonard to defend against an imminent danger. (See Casares, supra, 62 Cal.4th at 846.) Thus, there is no reasonable probability that admission of the evidence would have yielded an outcome more favorable to appellant. (See In re Richards (2016) 63 Cal.4th 291, 312-313 ["reasonable" probability under Watson standard is probability sufficient to undermine reviewing court's confidence in verdict].)
B. Omission of Inquiry into Ability to Pay
Appellant argues that the trial court violated her due process rights in imposing assessments and a restitution fine without a determination of her ability to pay. As appellant acknowledges, she did not object on this ground in the trial court. We agree with our colleagues in Division Eight of this Appellate District that a failure to object in the trial court forfeits this issue on appeal. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen); accord, People v. Keene (2019) 43 Cal.App.5th 861, 864.) For the reasons set forth in Frandsen, we reject appellant's contention that the issue was preserved because any objection before the purportedly unforeseeable ruling in People v. Dueñas (2019) 30 Cal.App.5th 1157 would have been futile. (See Frandsen, at 1153-1155 [holding Dueñas was foreseeable, and noting absence of evidence that defendant was "foreclosed from making the same request that the defendant in Dueñas made"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.