Opinion
C083941
03-06-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-148078)
A jury found defendant Robert Lee Nelson guilty of various counts including criminal threats and misdemeanor unlawful firearm use in violation of a restraining order. On appeal, defendant contends the trial court erred in allowing the People to reopen their case to admit additional evidence regarding the restraining order, after the defense had moved for judgment of acquittal on that count. He also challenges the admission of several law enforcement statements suggesting he had repeated prior contacts with them and was dangerous. Finding no error, we will affirm.
BACKGROUND
Defendant was charged with five counts: assault with a firearm, criminal threats, corporal injury to a cohabitant, misdemeanor unlawful firearm activity in violation of a restraining order, and resisting a police officer. A jury deadlocked on the assault count but found defendant guilty of the remaining counts. Defendant's conduct giving rise to the five counts occurred over a two-week period in September 2016.
Except as otherwise noted, date references are to 2016.
Testimony supporting the charges
As to the deadlocked count, assault with a firearm, the victim testified that defendant drove him to defendant's home on September 12. While there, defendant started yelling insults at him. When defendant brought out a shotgun, the victim texted his mother for a ride. Defendant pointed a shotgun at the victim and then hit him in the head at least seven times with it. The victim ran away.
As to the threats count, the testimony was that a few days later, the victim's mother told the police that defendant had left her a message saying: "This is Robert Lee Nelson. Save this message bitch cause I'm going to be the one responsible for [the victim's] murder and yours. You understand me pieces of fuckin shit? See you soon." Defendant also left a message for the victim's 73-year-old grandmother: "I am going to kill your grandson . . . and you too." When police contacted defendant, he said that "law enforcement knew who he was and that he was tired of people fucking with him, . . . and if it didn't stop, somebody may wind up dead."
The corporal injury count was based on defendant's attack on his fiancée three days later. Wearing cowboy boots, he kicked and hit her on the face, head, and torso. He held a shotgun as he beat her. A neighbor described her injuries as "disturbing" and a "horror show."
Four days after that, an officer served defendant with a temporary restraining order. He was told to relinquish his firearms within 24 hours. Defendant chuckled and said that was not going to happen. At the time, he had a holstered, loaded revolver with him and a revolver inside the car he was working on.
A week later, officers went to defendant's home to arrest him for assault with a deadly weapon. An arresting officer testified that: "There was some concern about going up onto his property because . . . he's been known to carry guns. I have had contact with him in the past at his property, and he's had guns on him, and the place is -- tactically, it's kind of a nightmare so if he -- if we were to go physically to the house to effect the arrest, it would have been pretty dangerous for us just because of all the stuff that's in the yard, in the house itself."
Similar testimony from the officers included: "There had been other incidents at the defendant's house . . . . [¶] [B]ased on things that I had read, other police reports and information I gained, that it would not have been . . . prudent just to walk onto the property and knock on the door . . . ." And, "We had prior knowledge that there were firearms involved, so we thought the safer bet would be to get the defendant away from the house to preclude any barricaded situation, make it more dangerous than it was, to get him into custody."
The officers opted to trick defendant into coming to the driveway. They told him they needed his signature on a citizen's arrest form. Defendant approached the driveway but refused to come further. Officers could see a pistol in his waistband. He was told to get rid of the gun, and he put it down.
An officer drew his gun and told defendant he was under arrest. Defendant ran, but he was soon subdued by a police dog. After his arrest, a shotgun was found nearby, pointing down the roadway. An officer testified the shotgun was facing toward the driveway, so "if a person were to pick it up, just by picking it up in that position, the barrel would already be pointed in a direction . . . for somebody like me coming up the driveway."
Defendant's conduct the day of his arrest formed the basis for his unlawful firearms and resisting charges.
Defendant's testimony
At trial, defendant testified that his .44-caliber firearm "[a]lways is on my hip." He added, "[w]e had a lot of problems on that property, and I always had a firearm on my hip since I've been there," and, "I owned firearms my whole life."
He admitted leaving the message that he was going to kill the victim and his mother, but maintained it was because he found "aggressive texting" to two minors on the victim's cell phone. He described the victim's mother ("this chick") to the jury as "livid" and "flipping out."
When asked if he recalled inflicting his fiancée's injuries, he answered: "Yeah, kind of, I guess. I mean, yeah. Yeah. Fuck it. It wasn't real, you know. I didn't think it was real . . . ." He later said, "for all intents and purposes, that was me but it wasn't. I had zero control." Based on a jury question, defendant was asked if he was undergoing treatment for any psychological disorders. He replied, "No. I wish I would have."
At other points defendant testified, "I got locked up for habitual traffic offending and put into a jail I had been to 20 times. All the deps knew me." He also mentioned being placed in administrative segregation for missing a court date, having been charged with menacing, and having been on probation.
Verdicts and sentencing
Prior to deliberation, the jury was instructed using CALCRIM No. 3428 that it could consider evidence that defendant may have suffered from a (mental) disorder for the limited purposes of deciding whether he acted with the requisite intent for the criminal threats charge.
The jury found defendant guilty of criminal threats (Pen. Code, § 422), corporal injury to a cohabitant (§ 273.5, subd. (a)) with a finding he inflicted great bodily injury, unlawful firearm activity in violation of a restraining order (§ 29825, subd. (b)), and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)). The jury deadlocked on the assault with a firearm count.
Further undesignated statutory references are to the Penal Code.
The trial court imposed an eight-year eight-month aggregate term.
DISCUSSION
I
Allowing the Prosecution to Reopen
Defendant first contends the trial court erred in granting the prosecution's request to reopen its case to admit evidence regarding the temporary restraining order, after the defense moved for judgment of acquittal. Although we do not condone the careless presentation of evidence such as that seen here, the trial court acted within its discretion when it allowed the correction at issue in this case, as we explain.
A. Background
The prosecution's final witness, a deputy sheriff, testified to serving a restraining order on defendant on September 22. The deputy was shown a copy of exhibit 31, which he identified as the restraining order he had served.
The sheriff initially testified it was September 23 but ultimately concluded it was September 22. --------
On cross-examination, the deputy conceded the judicial signature on the restraining order was dated October 25, and the order stated that it " 'starts on the date next to the judge's signature.' " The People rested after the deputy's testimony. The defense immediately brought a section 1118.1 motion for judgment of acquittal, arguing defendant did not violate the restraining order identified as exhibit 31 because it did not take effect until October 25.
The prosecutor responded that defendant had been served with a temporary restraining order on the date at issue--September 22--but that the prosecutor had inadvertently presented the subsequently issued actual restraining order as exhibit 31. She noted the temporary restraining order contained the same language and included the same firearm restriction as the actual order. She asked the court's permission to reopen her case to correct the error. She noted the deputy was still present, and it would take no more than five minutes to correct the error. Defendant objected on the grounds of late discovery.
The trial court found good cause to reopen. It noted the file contained both orders and had been available before trial for both sides to review. Presenting the wrong restraining order was a clerical mistake, and there was clear testimony that a restraining order had been served and defendant had been told to surrender his guns prior to his arrest. The court added that clarification was needed before defendant presented his case.
The deputy thereafter identified the newly presented exhibit 32 as the temporary restraining order he had served on defendant September 22, noting that it had been filed with the Superior Court on September 20.
B. Analysis
A trial court has broad discretion to order a case reopened, even after a section 1118.1 motion is made, so long as the court is convinced that the failure to present evidence was a result of inadvertence or mistake and not an attempt to gain tactical advantage. (People v. Riley (2010) 185 Cal.App.4th 754, 764-766 (Riley); §§ 1093, 1094 [setting forth trial order and procedure but providing that the trial court may depart therefrom for good reasons within its "sound discretion"].) " 'No error results from granting a request to reopen in the absence of a showing of abuse.' " (Riley, at p. 764.)
In reviewing a trial court's exercise of discretion, we consider factors including the stage of the proceedings when the motion was made, the diligence of the moving party in discovering the new evidence, the prospect the jury would accord it undue emphasis, and the evidence's significance. (Riley, supra, 185 Cal.App.4th at pp. 764-765.)
Here, the trial court acted within its discretion in allowing the prosecution to reopen its case. The error was discovered and corrected shortly after it occurred and before the start of the defense case. The error was clerical, in that it amounted to presenting the later version of the same document, and--critically--did not alter the nature of the accompanying testimony. The error was unlikely to be afforded undue emphasis by the jury. And nothing indicates the error was an attempt to gain tactical advantage.
Defendant maintains that by moving for judgment of acquittal, and in doing so pointing out deficiencies in the prosecution's case, his trial counsel became an unwitting agent in his conviction. Therefore, he argues, the prosecution should not have been permitted to reopen following his section 1118.1 motion. In support, he points to People v. Belton (1979) 23 Cal.3d 516 and People v. Martinez (1982) 132 Cal.App.3d 119 and argues we should not follow Riley, a case decided by the Fourth District.
In Belton, following the prosecution's case, defendant moved for judgment of acquittal but did not cite a specific ground. (People v. Belton, supra, 23 Cal.3d at pp. 519, 521.) The trial court summarily denied the motion; Belton was ultimately convicted and appealed. (Id. at p. 519.) The Supreme Court held that a defendant need not provide a specific ground in moving for judgment of acquittal. Our high court explained that to require a defendant to provide specific grounds would force him or her to choose between (1) specifying the defects in the prosecution's case, spurring the prosecution to reopen its case to cure the defect, (2) making no motion and resting, sacrificing the right to make a defense, or (3) making no motion, and proceeding to present a defense. (Id. at p. 521.) Riley did not contradict Belton's holding; Riley did not purport to require a defendant to specify the grounds on which his or her motion for acquittal is made.
In Martinez, another appellate court held that under Belton defendant's motion for acquittal was procedurally adequate despite its failure to reference the key deficiency in the People's case and the fact that the motion, as made, actually "direct[ed] the court's attention to other considerations." (People v. Martinez, supra, 132 Cal.App.3d at p. 127.) In urging the Supreme Court to reconsider its decision in Belton, the Martinez court noted: "The thought occurs to us that rather than deprive the trial court of specification of reasons for the motion, a simpler solution, equally fair to the defendant, would be to require the defendant to specify reasons for the motion but deny the People the right to reopen for any reason so specified." (Id. at p. 129.) This statement is clearly dicta; Martinez followed Belton and declined to require defense counsel to state accurate grounds for the motion, despite "[r]ecognizing the inherent unfairness to this exceedingly conscientious trial judge whose mental set was diverted from the issue which we now address." (Id. at p. 128.)
Neither Belton nor Martinez (which precede Riley by decades) purport to decide the issue presented in Riley; that is, whether a court may permit the People to reopen after a motion for judgment of acquittal. Cases are not authority for propositions not considered therein. (Siskiyou County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 437 fn. 11.)
In Riley, a marijuana possession case, the trial court permitted the prosecution to reopen its case after the defense moved for judgment of acquittal at the close of the prosecution's case, arguing the prosecution had failed to prove Riley possessed a usable amount of marijuana (though the prosecution mistakenly believed such testimony had been provided). (Riley, supra, 185 Cal.App.4th at pp. 759-760.) There had, however, been testimony that Riley possessed .47 grams of marijuana. (Ibid.) The trial court allowed the prosecution to reopen, explaining whether .47 grams was a useable amount did not appear to have been an issue in dispute, and the defense knew the amount before trial. (Id. at p. 763.) The appellate court explained, "the fact that the defendant moved for judgment of acquittal pursuant to section 1118.1 should not categorically prohibit the trial court from exercising the discretion granted to it under sections 1093 and 1094." (Id. at p. 766.)
Neither Belton nor Martinez compels the conclusion that Riley was wrongly decided. We see no abuse of the trial court's discretion in allowing the prosecution to reopen to correct its mistake of presenting the temporary rather than the actual restraining order to the deputy for identification.
II
Admission of Police Testimony Regarding Defendant
As to his conviction for criminal threats, defendant contends the trial court erred in allowing testimony painting him as a dangerous, armed criminal with prior police contacts. He points to five instances of law enforcement testimony: (1) there was concern about going onto defendant's property because he has "been known to carry guns," and there had been past contacts with him at his property; (2) "[t]here had been other incidents" at his house, and police reports indicated that walking onto his property and knocking on the door would not be prudent; (3) a ruse was used because police had prior knowledge that firearms were involved, and they wanted to avoid a barricade situation; (4) a shotgun found on his property was pointed toward the driveway so if a person were to pick it up, it would already be pointed at "somebody like me coming up the driveway"; and (5) there had been episodes in the past where an officer had contacted defendant, and there had been other people on the property.
Defendant argues the evidence should have been excluded as unduly prejudicial and tending to evoke emotional bias under Evidence Code section 352.
At the outset, the challenge is forfeited on appeal for failure to object to the testimony at trial. (See People v. Dykes (2009) 46 Cal.4th 731, 756 [trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal].)
Anticipating that conclusion, defendant contends his trial counsel rendered ineffective assistance in failing to object. He argues there was no tactical advantage to not objecting. And, as to the criminal threats count, the testimony caused the jury to disregard evidence of his mental illness and conclude he formed specific intent to have his statements taken as a threat.
To establish ineffective assistance of counsel, a defendant must show his counsel's performance was deficient as measured against a reasonably competent attorney and that deficient performance prejudiced defendant in that it " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Thompson (2010) 49 Cal.4th 79, 122.) Here, defendant can do neither.
First and foremost, an Evidence Code section 352 objection would have been futile. (People v. Thompson, supra, 49 Cal.4th at p. 122 ["Counsel is not ineffective for failing to make frivolous or futile motions"].) Given the state of the evidence, the probability of undue prejudice was exceedingly low. (See Evid. Code, § 352; People v. Riggs (2008) 44 Cal.4th 248, 290 [generally, evidence is substantially more prejudicial than probative if it poses an intolerable risk to the proceedings' fairness of the outcome's reliability].) The challenged testimony was relevant to the circumstances of the arrest, which gave rise to the resisting arrest count. And the testimony was no more prejudicial than defendant's own statements and actions, which demonstrated officers had cause to be concerned. Defendant told an officer, "he was tired of people fucking with him," "and if it didn't stop, somebody may wind up dead." He threatened the beating victim and his family. When he was served with a restraining order, he told an officer that he would not relinquish his guns. And the jury was told of two serious beatings by him.
Further, defendant cannot establish prejudice from counsel's failure to object. Defendant testified to always having a gun on his hip. He mentioned having been to jail 20 times and that all the deputies knew him. He admitted leaving threatening voicemails and severely beating his fiancée.
The jury was instructed that it could consider defendant's mental disorder in considering specific intent. Thus, under the circumstances there was not a reasonable probability that the absence of the officers' testimony regarding contacts with defendant, the danger of going onto his property, and the orientation of the shotgun would result in a more favorable outcome. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48 [prejudice is measured by a reasonable probability of a more favorable outcome].)
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.