Opinion
D054779
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. KULDIP SINGH, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted defendant Kuldip Singh of assault by means of force likely to produce great bodily injury (count 1, Pen. Code, § 245, subd. (a)(1)) and assault with a deadly weapon (count 2, § 245, subd. (a)(1)), but found not true an allegation Singh personally used a knife in connection with the assault. The court sentenced Singh to five years probation subject to various terms and conditions, including a condition he spend 365 days in local custody.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Singh asserts the trial court erred by (1) coercing the jury into reaching a verdict, (2) failing to correctly instruct on separating the two charged offenses, (3) instructing the jury with CALCRIM No. 875, (4) admitting and instructing on expert testimony, (5) denying Singh effective assistance of an interpreter, (6) excluding character evidence about the victim, and (7) excluding evidence about animosity between rival groups to which Singh and the victim belonged.
I
FACTUAL BACKGROUND
A. The Prosecution Case
On December 31, 2001, Ron Sandhu (the victim of the assault), along with his wife (Harvinder) and other family members, attended New Years Eve services at the Sikh Temple of Riverside (the Temple). When the service concluded shortly after midnight, Ron and his family walked to an outside patio to collect the shoes they had left before entering the Temple.
Singh, accompanied by three other men, approached Ron. Ron recognized Singh because Singh had worked for Rons father a few years earlier; Ron also knew Singhs wife (Perminder) because she had stayed with Rons family for a few months when she and Singh had been experiencing marital difficulties. Singhs companions included Mr. Oknar and two others. All four men were carrying heavy metal bracelets with ridges, grooves and spikes used in fighting under Sikh traditions.
Ron said "Happy New Year" to Singh, who appeared angry and replied, "Im going to kill you." Singhs group surrounded Ron, with Singh and Oknar striking Ron from the front while the other two stood behind him. Singh struck Ron on the head with a sharp metallic object, and then punched Ron with his fists. Singh also grabbed Ron by his arms while Oknar struck Ron with a bracelet.
Harvinder tried to stop the beating by moving between Singh and Ron and pushing the two apart. When this was unsuccessful, she pleaded for help from others who had gathered near the fight. After a couple of minutes, some members of the crowd ran toward the fight, and the assailants broke off the attack and ran to a car in the parking lot. As they ran, one of them (referring to a broken window on the car) said, "Were going to tell the police that you guys broke our glass."
Police arrived about 10 to 15 minutes after the assailants left. Ron was still bleeding from lacerations to his scalp. He was transported to a hospital where he was treated for his injuries and then released.
As part of the police investigation, Deputy Terry Jones of the Riverside Sheriffs Department spoke by telephone with Singh, Oknar, and the other two participants, and reached all four men at the same telephone number. When Jones met him at the police station, Oknar had a small scratch on his thumb, but the others had no noticeable injuries.
B. The Defense Case
The defense case had two major components: first, two witnesses (Messrs. Cheema and Goraya) testified Ron was the initial aggressor who provoked a fight with Singh and Oknar that thereafter escalated; and, second, one of the witnesses who provided evidence supporting the prosecutions case (Gurjpal Singh) had a financial interest in testifying against Singh.
According to Cheema and Goraya, the following events occurred. Singh was outside the Temple retrieving his shoes when Ron approached with an angry expression and asked Singh, "What are you doing here?" Singh responded, "What is your problem" or "Ive come to the same temple for the same reason that you are here . . . ." Ron declared Singh should not be there and stated, "Ill teach you a lesson." Oknar walked up to them, stepped between them and asked what was going on. Oknar told Ron to step aside and that Oknar would handle the situation, but Ron tried to punch Oknar in the face. Oknar blocked the punch and hit Ron in the forehead. Ron and Oknar then began exchanging blows and Singh, although standing next to them, did not intervene. The fight ended when other worshipers intervened and separated the combatants.
Cheema and Goraya further testified Singh and Oknar, along with the other two men, walked toward their car, and Ron and members of his family (carrying baseball bats and sticks) pursued Singhs group. As Singhs car was leaving the parking lot, Rons group caught up with them and shattered the side and rear windows with the bats. Goraya also testified that, as he was leaving, Ron and Rons father threatened to "teach [Goraya a] lesson too."
Singhs father (Balbir) testified that prosecution witness Gurjpal had threatened to take revenge against Singh by giving false testimony in Singhs trial. Gurjpal was angry because Singh and Balbir had witnessed (and tried to break up) a fight between Gurjpal and a third person, and the third person had filed a civil suit against Gurjpal at which Singh and Balbir were scheduled to testify for the plaintiff. Gurjpal told them not to testify or he would seek revenge by giving false testimony against Singh in Singhs criminal trial. Balbir also testified another man (Jasvinder) told Balbir that Rons father had tried to get Jasvinder to testify Singh had a knife during the fight.
C. Prosecution Rebuttal
Mr. Atwal testified he was with Goraya inside the Temple when the altercation began. An investigator who interviewed Goraya testified Goraya said he was inside the Temple and did not see the fight begin, he had walked to the door and looked outside and Singh and Ron were pushing and shoving each other when Oknar separated them, and Singh and Oknar drove away in a car with a broken window.
Atwal also testified several people in the crowd told Atwal Singh and his friends had beaten Ron.
Deputy Jones testified there were no sticks or bats recovered at the scene. There were shards of glass found near the Temple, but they were not in the entry or parking lot. Instead, the glass was found on Mission Boulevard about 25 to 30 yards from the driveway leading into the Temple parking lot.
ANALYSIS
A. The Trial Court Did Not Coerce the Verdict
Singh asserts the trial court committed numerous errors when the jury initially reported it was at an impasse, and the errors improperly coerced the jury into reaching a guilty verdict.
Background
On the afternoon of October 1, the jury commenced deliberations. The following afternoon, at approximately 4:30 p.m., the jurors sent a note stating they had reached a verdict on the counts alleged as to the other defendants, as well as to count 1 against Singh, but could not reach a verdict on count 2 as to Singh.
The court assembled counsel and the jurors. The court stated it understood the jury had reached verdicts on everything except for count 2 against Singh and, when the foreperson confirmed this, asked, "And what direction is the agreement?" The foreperson responded the split was 11 to 1, but the court stated, "No. The agreement[,] not the disagreement . . . [¶] . . . [¶] . . . the ones . . . you agreed upon, in what direction was the agreement? Was that a unanimous verdict?" The foreperson stated "Yes, sir."
The court then asked, "does it look to you as if further deliberation would not be helpful as to [count 2], but that its set in stone?" and the foreperson responded it would be difficult because they had spent most of the day on count 2 and "I have done everything I could to plead my case, and I believe, I dont know, I dont want to speak for everyone, but it might not be worth it." The court then asked the entire jury whether any of them felt further deliberations would be fruitful. Although no one raised a hand, Juror No. 1 stated further deliberations would always be useful because it "might help perspective [and] [i]t might bring ideas into the picture [s]o I think it would."
The court, after confirming Juror No. 1 believed further deliberations would be helpful but noting it did not "want to appear in the position of putting undue pressure on any one person," announced it would take the verdicts that had been agreed on. The jury found Singh guilty of count 1, but found the other defendants not guilty of the charges. The court then polled the jury as to the one guilty verdict it had reached.
The court then asked about the direction of the unresolved count 2, and the foreperson stated it was 11 to 1 in favor of a guilty verdict. The court then asked whether everyone "still feels the same way" about further deliberations. Juror No. 1 said "yes," but there were no other recorded responses. The court then asked counsel for their positions on whether they would stipulate the jury was hung, and defense counsel agreed, but the prosecutor stated "a couple of the jurors had indicated further deliberation would help, but its ultimately up to them in terms of whether or not." The court then asked the foreperson, "What do you think?" and the foreperson replied that "when we were leaving the room, it was almost unanimous that further deliberation probably wouldnt help." However, the foreperson then stated, "Maybe thats changed. I mean, 15 minutes . . ." and then (in an apparent query directed to his fellow jurors) asked, "what do you think? Should we try it or . . . ." The foreperson then said (in apparent reference to the nonverbal responses from his fellow jurors) said, "That would have to be unanimous, your Honor."
The court then asked the foreman, considering the informal poll just taken, "where did that leave you thinking?" The foreperson replied "I think we should [deliberate further], your Honor. Its been two weeks. I hate to leave it like this. If we could, I think we can give it a chance, even though there is some disappointment[]." The court asked, "Well, . . . do you want to give it a little more time between now and 5 oclock and reach a resolution that either [youre] hung or not?" and the foreman replied, "Yes, please," and Juror No. 6 added, "Yeah, we can give it to 5 oclock." The court agreed with that plan, and jury then retired to further deliberate.
The jury returned approximately 20 minutes later and the court asked "is the situation unchanged?" but the foreperson said, "No. Weve come to an agreement, your Honor." The court expressly stated, before polling the jury, that "in any 11 to 1 situation, we have to be concerned in that we dont want anybody to change [his or her] vote just to reach [] unanimity. It is a matter of personal conscience whether or not you think the case has been proven beyond a reasonable doubt. So we dont need unanimity so badly as to violate that principle. [¶] All right. . . . So well have that in mind as we do a poll on this one." The court then examined the verdict form, and determined the verdict was guilty, and stated, "So before we . . . enter that verdict, we need to be sure that there actually is unanimity and not an agreement just to give unanimity and avoid any possibility of further litigation or spending more time on it." The court then polled the jury and each juror confirmed it was his or her own individual verdict.
Legal Principles
When a jury declares that it is unable to reach agreement on a charge, the question whether to declare a hung jury or order further deliberations rests (under statutory and decisional law) in the trial courts sound discretion. (§ 1140 [jury may be discharged without reaching a verdict if, "at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree"]; People v. Proctor (1992) 4 Cal.4th 499, 539.) "Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived "`as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered." [Citation.] [Citation.]" (Proctor, at p. 539.)
As long as the court avoids coercing the jury to reach a verdict, there is no bar against inquiring into the possibility of agreement, and it is not coercive to suggest further deliberations so that the jurors could come "`to understand fully each others viewpoint." (People v. Bell (2007) 40 Cal.4th 582, 617-618.) Moreover, although federal practice differs, "California courts do allow the practice of inquiring into the jurys numerical division, without finding out how many are for conviction and how many for acquittal." (People v. Gill (1997) 60 Cal.App.4th 743, 748.) However, even when a trial court directs the jury to conduct further deliberations after learning the numerical split is 11 to 1 and the majority favors conviction, the order directing further deliberations will be upheld when there were no coercive comments by the trial court accompanying the direction to resume deliberations. (People v. Sheldon (1989) 48 Cal.3d 935, 960; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254.)
Analysis
Singh first asserts it was reversible error to order further deliberations because the court asked which direction the majority favored. Although it was ill advised to ask the jury of the direction in which they were leaning in their 11 to 1 split (People v. Gill, supra, 60 Cal.App.4th at p. 748), we are convinced from the trial courts comments as a whole that the trial court did not coerce the verdict. (People v. Sheldon, supra, 48 Cal.3d at p. 960.) The court, after learning of the numerical split but not the direction of the split, asked whether anyone thought further deliberations would be fruitful. When Juror No. 1 stated he believed further deliberations would be helpful, the court expressly noted it did not "want to appear to be in the position of putting undue pressure on any one person" and that it would take the verdicts on which there had been agreement. Only after taking the verdicts on the other counts did the court, readdressing the subject of possible further deliberations, ask about the direction of the split and whether everyone "still feels the same way" about further deliberations, to which Juror No. 1 said "yes." However, when the prosecutor stated "a couple of the jurors had indicated further deliberation would help, but its ultimately up to them in terms of whether or not" (italics added), the court asked the foreperson, "What do you think?" After the foreperson apparently queried his fellow jurors and learned they unanimously wanted a brief period to determine if agreement were possible, the court asked the foreperson what the foreperson thought, and the foreperson volunteered that they should deliberate further.
The record as a whole convinces us that, although the court provided the jury the opportunity to further deliberate after learning of the direction of the split, it cautioned that it did not want to give the impression it was seeking to pressure one person and instead left the decision of whether to conduct further deliberations in the hands of the jury. Moreover, when the jury returned with its verdict, the court withheld polling the jury until it first reiterated that it did not "want anybody to change [his or her] vote just to reach [] unanimity" and that "we dont need unanimity so badly as to violate [the] principle [that it is a matter of personal conscience whether each juror independently believed the case has been proven beyond a reasonable doubt]." These circumstances convince us the court was careful to ensure that no juror was pressured by the court either into further deliberations or to alter his or her vote by the courts comments.
Singh also argues the court erred by improperly placing a time limit on the further deliberations. Certainly, a "trial judge should refrain from placing specific time pressure on a deliberating jury and should never imply that the case warrants only desultory deliberation. Such comments risk persuading legitimate dissidents, whatever their views, that the court considers their position unreasonable." (People v. Keenan (1988) 46 Cal.3d 478, 534.) However, the court here did not impose any time limits on the jury. Instead, it appears the jury unanimously agreed with the forepersons suggestion that the jury take an additional 15 minutes, during which the jury could assess whether it remained deadlocked, and the court was merely confirming that desire when it asked, "do you want to give it a little more time between now and 5 oclock and reach a resolution that either [youre] hung or not?" to which the jury answered affirmatively. We are not persuaded by Singhs claim that the court acted coercively by imposing time limits on the jurys deliberations.
Singh did not object below to this procedure, which we believe waived any objection. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.) Moreover, even if the absence of any contemporaneous objection did not "thereby waive[] this issue [citation], . . . such an omission indicates that the potential for coercion argued now was not apparent to one on the spot." (Lowenfield v. Phelps (1988) 484 U.S. 231, 240, fn. omitted.)
Singh finally asserts the court erred when it permitted the jury to resume deliberations without instructing that it was the jurors duty not to surrender conscientiously held beliefs simply to secure a verdict. However, Singh did not request that instruction, and therefore any claim of error is waived. (Cf. People v. Ramsey (2000) 79 Cal.App.4th 621, 630.) Moreover, the courts original instructions (which we presume the jury followed, see People v. Anderson (2007) 152 Cal.App.4th 919, 951) cautioned the jurors they should "not change [their minds] just because other jurors disagree with [them]," and we are cited no California authority holding an instruction must be repeated when a jury announces it is deadlocked but is sent back for additional deliberations. We conclude the jury was adequately advised that it should not yield to the majority out of expediency.
Even assuming some form of sua sponte reinstruction was required, we are convinced the courts comments to the jury conveyed the gist and substance of the allegedly omitted instruction. The court told the jury before deliberations resumed that it did not "want to appear in the position of putting undue pressure on any one person," and explicitly stated (before polling the jury on its verdict on count 2) that "we dont want anybody to change [his or her] vote just to reach [] unanimity" and "[i]t is a matter of personal conscience whether or not you think the case has been proven beyond a reasonable doubt. So we dont need unanimity so badly as to violate that principle."
B. Substantial Evidence Supports Separate Convictions
Singh next asserts the court erred when it instructed that counts 1 and 2 constituted separate crimes, rather than instructing (under CALCRIM No. 3516) that each count represented alternative theories for a single offense, and it was error to accept verdicts on each count. Singhs sub silencio argument is that the evidence was insufficient to support two separate convictions, and the error should be corrected by remanding with instructions to dismiss one of the two convictions.
Background
Singh was charged with two counts of violating section 245, subdivision (a)(1). Count 1 alleged Singh assaulted the victim by means of force likely to produce great bodily injury, and personally used a knife in connection with that assault. Count 2 alleged that, as a different offense from, but connected with, the assault charged in count 1, Singh assaulted the victim with a deadly or dangerous weapon, to wit, a metal bracelet and/or a knife.
The court, after instructing on the elements of the charged offenses, instructed the jury that the prosecution had "presented evidence of more than one act to prove that the defendant[] committed these offenses. You must not find the defendant . . . guilty of either offense unless you all agree that the People have proved that [Singh] committed at least one of these acts, and as to each count you could all agree on which act he committed. The same individual act can support only one of the two counts. . . . [¶] Each of the counts charged in this case is a separate crime." (Italics added.) Singh did not request, and the court did not give, CALCRIM No. 3516.
Legal Framework
A defendant who commits different acts violating section 245 may be charged with and convicted of multiple counts of violating section 245, even where all of the acts of violence are part of a single continuous course of conduct and are directed at a single victim. (Cf. People v. Trotter (1992) 7 Cal.App.4th 363.) However, when a defendant is charged with multiple counts under alternative theories of liability for a single event, and may legally be convicted of only one of the charges, the defendant may only suffer a single conviction on one of the alternative theories. (Cf. People v. Prado (1977) 67 Cal.App.3d 267, 273.)
Analysis
Singh, relying on People v. Aguilar (1997) 16 Cal.4th 1023, asserts the two assault charges here were based on the same conduct and were separately charged counts only because assault with force likely to inflict great bodily injury (count 1) and assault with a deadly weapon (count 2) were alternative theories. Singh asserts he could not be convicted on both counts. However, Singhs reliance on Aguilar is misplaced. The court in Aguilar discussed primarily whether, when the defendant was convicted of a single count of assault and the prosecutors argument was that the defendants hands and feet qualified as deadly weapons within the meaning of section 245, the argument was a correct statement of the law; Aguilar concluded it was not. (Aguilar, at pp. 1028-1035.) However, Aguilar (using the language quoted and relied on by Singh) concluded reversal of the conviction was not required because the prosecutors argument was that hands and feet were deadly weapons "[i]f they are used in such a manner that it could cause . . . great bodily injury." (Id. at p. 1036, italics added by Aguilar.) The Aguilar court concluded the prosecutors argument was harmless because it invited the jury to convict the defendant (albeit under the erroneous "deadly weapon" theory) only if it found he had used force likely to inflict great bodily injury, a proper alternative basis for convicting under section 245, and therefore the prosecutors "argument, although erroneous, would not have caused the jury to deviate from the correct analytical path." (Ibid.)
Unlike Aguilar, which involved a single count of assault, Singh was charged with two counts based on alleged multiple acts. (People v. Trotter, supra, 7 Cal.App.4th 363.) Moreover, the jury was instructed there was evidence presented of more than one act to prove Singh committed the offenses, all jurors had to unanimously agree (as to each count) on which act he committed, and the same individual act can support only one of the two counts. Accordingly, the issue is not akin to that confronting Aguilar, but is instead whether there was substantial evidence from which the jury could have found separate acts each constituting an assault on Ron.
We reject Singhs sub silencio assertion that the evidence was insufficient to permit a jury to find separate acts of assault against Ron. There is some evidence that Singh delivered two initial blows to Rons head with some metallic object (which could support a guilty verdict on one count), and Rons wife then intervened by stepping between them and trying to push Ron and Singh apart. However, she was unsuccessful, and there was evidence the attack (which lasted approximately one to two minutes) was then resumed by Singh inflicting additional blows (which could support a guilty verdict on a second count). Under Trotter, the evidence permitted separate convictions for assault.
The evidence would also support separate convictions if the jury found Singh was the principal in the original attack and, after Rons wife temporarily separated the combatants, Singh aided and abetted Oknars attack. The evidence would support this finding: numerous witnesses testified Singh inflicted blows personally, and one witness further testified he saw Singh hold Rons arms to restrain him while Oknar inflicted blows to Rons head.
C. The Instruction On Deadly Weapon Was Adequate
Singh next asserts the court erred in giving CALCRIM No. 875 without sua sponte supplementing the instruction with language that would have required the jury to find Singh intended to use the metal bracelet as a deadly weapon. Because Singh relies on People v. Graham (1969) 71 Cal.2d 303 (Graham) (disapproved on other grounds by People v. Ray (1975) 14 Cal.3d 20, 32) for this alleged sua sponte obligation, we examine Graham in detail.
Graham
In Graham, the defendant was charged with robbery in violation of former section 211a, which required the robbery be perpetrated by a person "armed with a dangerous or deadly weapon." The only evidence showed the defendant wore shoes and kicked the victim, and the court concluded a shod foot will not support a finding the robber was armed with a dangerous or deadly weapon unless the jury is instructed on and finds the defendant intended to use it in as a dangerous or a deadly weapon. (Graham, supra, 71 Cal.2d at p. 327.) Graham noted that, although the manner in which the defendant uses an object does not automatically determine whether he or she was armed with a dangerous or deadly weapon, the method of how he or she used it may be evidence of intent. (Ibid.) Graham adopted the language of People v. Raleigh (1932) 128 Cal.App. 105 to conclude:
"`that a distinction should be made between two classes of "dangerous or deadly weapons." There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are "dangerous or deadly" to others in the ordinary use for which they are designed, may be said as a matter of law to be "dangerous or deadly weapons." This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons." When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion. [Quoting Raleigh, supra, at pp. 108-109.]" (Graham, at pp. 327-328.)"
Graham concluded a jury could only find the defendant was "armed with a dangerous or deadly weapon" if the jury found (1) the shoe could be used in a dangerous or deadly manner, and (2) the defendant intended to use it as a deadly weapon. (Graham, supra, 71 Cal.2d at p. 328, fn. 11.) Although Graham concluded there was evidence that could have supported that finding under proper instructions, Graham reasoned the absence of an instruction explaining the requisites for a finding the defendant was "armed with a dangerous or deadly weapon" prevented the jury from rationally applying the language of former section 211a to the facts of the case. Accordingly, Graham concluded, when in a robbery case the instrumentality carried by the robber "is neither a weapon in the strict sense of the word nor `dangerous or deadly to others in the ordinary use for which it is designed, the trial court should [sua sponte instruct on] the issue which the jury must resolve" regarding the defendants intent. (Graham, at p. 329.)
Analysis
We conclude Graham is inapposite, for two reasons. First, Graham imposed no instructional obligation for instrumentalities that are weapons "`in the strict sense of the word and are "dangerous or deadly" to others in the ordinary use for which they are designed " (Graham, supra, 71 Cal.2d at p. 327, italics added), but instead limited the sua sponte instructional obligation to those types of common items otherwise innocuous and not weapons "`in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed. " (Id. at pp. 327-328, italics added.) Although Singh asserts the bracelets used in this attack fall under the second category, the only evidence submitted below was that the bracelets were not merely ornamental jewelry innocuous in the ordinary uses for which they were designed, but instead a type of bracelet much heavier and designed with ridges, grooves and spikes designed for use in fighting under Sikh traditions. Because the sua sponte obligation is limited to the general principles of law closely and openly connected with the facts before the court (People v. Najera (2008) 43 Cal.4th 1132, 1136), and the facts below were that the particular bracelets employed by the attackers were designed as weapons and were employed as such against Ron, Graham has no application.
We are also convinced Graham is inapposite because the particularized elements of the offense considered, and the instructions given, in Graham differ significantly from the elements of the charged offenses and the instructions given below. In Graham, the crime of robbery was aggravated if the perpetrator merely possessed a dangerous or deadly weapon during its commission, but it appears the instructions given did not further refine what constituted a dangerous or deadly weapon, leaving the jury to speculate whether a shoe could qualify as a dangerous or deadly weapon. (Graham, supra, 71 Cal.2d at pp. 327-329.) Here, however, the crime required a deadly weapon actually be used, and further defined a deadly weapon to be "any particular instrument or weapon that is inherently deadly or dangerous, or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." The highlighted language largely tracks the instruction Graham held to be necessary when the weapon employed is not within the class of weapons that are dangerous or deadly weapons as a matter of law. (Id. at p. 328, fn. 11.) The only aspect of Graham not expressly appended to the deadly weapon definition was whether (in Grahams words) "the [perpetrator] intended to use the instrumentality . . . as a weapon of offense or defense should the circumstances require." (Ibid.) Although that language may be necessary when mere possession (regardless of actual use) violates the statutory proscription, that language is at best misleading (if not erroneous) by suggesting the prosecution must prove some form of specific intent when the weapon is actually used. To the contrary, the statute is violated by an assault with actual use of the weapon where the defendant acted intentionally or willfully (cf. In re Tameka C. (2000) 22 Cal.4th 190, 198), and the jury was properly instructed it could not find Singh guilty unless it found he committed the act willfully and with general criminal intent. There was no sua sponte obligation to provide any further amplification.
D. Singh Is barred from Asserting Instructional Error Regarding Expert Witness Testimony
Singh asserts the trial court should not have given CALCRIM Nos. 332 and 360, which instructed the jury on how to evaluate the emergency room doctors testimony. However, even assuming the court should not have given them, the defense requested these instructions. The doctrine of invited error bars a defendant from challenging instructions given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instructions. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) Although we have substantial doubt as to the merits of Singhs claim, the doctrine of invited error renders extended discussion unnecessary.
On appeal, Singh also lists CALCRIM No. 333 as one of the "expert witness" instructions erroneously given. However, that instruction addresses the opinion testimony of lay witnesses, and Singh does not articulate how giving this instruction was error.
E. The Prosecutions Use of an Interpreter Was Not Improper
Singh next asserts he was denied his constitutionally protected right to the exclusive use of an interpreter and denial of that right was prejudicial error.
Background
During trial, immediately prior to commencing the prosecutions rebuttal case, the defense objected that the prosecutor had used the interpreter provided to Singh to conduct an out-of-court interview with a rebuttal witness. There was no dispute the interpreter assisting the prosecution had returned home and was therefore unavailable, the prosecutor therefore used Singhs interpreter to interview the rebuttal witness the preceding day, and the interview was tape recorded and copies of the recorded interview were given to defense counsel. The defense, analogizing an interpreter to an expert witness, argued the use of the interpreter by the prosecution was a constitutional violation. The court rejected the defense argument.
Principles
Article I, section 14 of the California Constitution provides "[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." (Italics added.) In People v. Aguilar (1984) 35 Cal.3d 785, the court (construing the "throughout the proceedings" language) noted:
"Interpreters play three different but essential roles in criminal proceedings: `(1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendants understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English[-]speaking defendant and his English-speaking attorney to communicate . . . an interpreter performing the first service will be called a "witness interpreter," one performing the second service, a" proceedings interpreter," and one performing the third service a "defense interpreter." (Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant (1975) 63 Cal.L.Rev. 801, 802 . . . .) While the three roles are interrelated they are distinct.
"The defendants right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one. At moments crucial to the defense—when evidentiary rulings and jury instructions are given by the court, [and] when damaging testimony is being introduced—the non-English[-]speaking defendant who is denied the assistance of an interpreter, is unable to communicate with the court or with counsel and is unable to understand and participate in the proceedings which hold the key to freedom." (Id. at pp. 790-791, fn. omitted.)
However, not every alleged impropriety involving interpreters rises to the level of a constitutional violation. (People v. Superior Court (Almaraz) (2001) 89 Cal.App.4th 1353, 1357-1360.) Moreover, even when a defendants right to an interpreter during important parts of trial proceedings has been infringed, reversal will not be required if the infringement was harmless beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1010-1014.)
Analysis
Relying on Aguilars statement that the right to an interpreter "is a continuous one" (People v. Aguilar, supra, 35 Cal.3d at p. 790) and Aguilars finding that the "borrowing" of the interpreter in that case denied the defendant the constitutionally protected right (id. at p. 791), Singh asserts he was deprived of that right when the prosecutor employed the interpreter for the out-of-court interview. However, Aguilar used the "continuous" right language in connection with the "defendants right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses" (id. at p. 790), and thus was focused on the defendants ability to understand and participate in trial proceedings at "moments crucial to the defense." Indeed, Aguilars conclusion that borrowing the interpreter in that case denied the defendant his constitutional right was tethered to the fact that the interpreter was borrowed during trial proceedings to interpret the testimony of a prosecution witness, which necessarily precluded the interpreter from performing two key functions (e.g. facilitating the "defendants understanding of the colloquy between the attorneys, the witness, and the judge" and "enabl[ing] the . . . defendant and his English-speaking attorney to communicate, ibid.), thereby impinging on the defendants ability to fully understand and participate in the proceedings that threatened his liberty. Thus, it was not the borrowing of the interpreter that infringed on the constitutionally protected right, but was instead the impact of the absence of an interpreter during moments crucial to the defense that formed the constitutional violation. No similar violation occurred here because the borrowing did not remove the interpreter from Singhs side during the trial proceedings.
Singh argues we should nevertheless find reversible error because the fact the interpreter participated in translating the prosecutors interview gave rise to several possible problems: "potential intrusion into confidential defense communication"; there was no assurance "confidential communications were [not] disclosed"; and it was possible "the interpreters communication to the defense could be affected by the exposure to the prosecution evidence." However, Singh cites no evidence suggesting any of these remote potentialities ever came to fruition, and therefore we may not reverse on this record. (People v. Rodriguez, supra, 42 Cal.3d at pp. 1015-1016.)
Singh appears to argue it is impossible to produce such evidence, and therefore we cannot find the error harmless beyond a reasonable doubt. However, Singh had access to the recording of the offending interview, as well as access to the interpreter to fill in any background information, to produce evidence of infringements on confidential communications. Moreover, Singhs codefendant apparently had his own interpreter, but there was no declaration from his interpreter suggesting Singhs interpreter failed (after the offending interview) accurately and truthfully to translate on Singhs behalf.
F. The Evidentiary Rulings Were Not an Abuse of Discretion
Singh finally asserts the trial court prejudicially erred by excluding certain evidence. First, Singh sought to introduce evidence Ron lied to police and under oath about the events of an unrelated matter that would undermine Rons credibility. Second, Singh sought to introduce evidence of conflicts between Rons family and other Temple members to show motive for Ron to instigate the altercation with Singh.
Standard of Review
A trial courts decision to admit or exclude evidence is reviewed under the deferential abuse of discretion standard (People v. Vieira (2005) 35 Cal.4th 264, 292), and its ruling to admit or exclude evidence will be upheld unless the trial court "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Although the Constitution protects the defendants right to have the "`meaningful opportunity to present a complete defense" (Crane v. Kentucky (1986) 476 U.S. 683, 690), the right to present evidence is not an absolute right. (Taylor v. Illinois (1988) 484 U.S. 400, 410-411.) To the contrary, trial judges retain "`wide latitude to exclude evidence that is `repetitive . . ., only marginally relevant or poses an undue risk of `harassment, prejudice, [or] confusion of the issues [quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679], [and] we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted." (Crane, at pp. 689-690.) Accordingly, when evidence is excluded through the application of the ordinary rules of evidence, there has been no impermissible infringement on a defendants right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
The Unrelated Altercation
Background
At an in limine hearing held before opening statements, the prosecutor moved to exclude any evidence that Ron had been convicted of misdemeanor battery arising out of a 1999 incident involving a busboy at a restaurant Ron owned and operated. The prosecutor argued (1) the offense did not involve moral turpitude and therefore was inadmissible impeachment evidence, and (2) there would be no claim Ron had a character for peacefulness on which contrary evidence to rebut the claim would be relevant.
The defense then argued there were underlying facts that tended to make the 1999 incident more relevant. The defense asserted the busboy claimed Ron attacked him without provocation. The defense also asserted that, when Ron was arrested, he gave a different version of the facts than he had initially given; he subsequently threatened to retaliate against the busboy (leading to an additional charge of terrorist threat under § 422); and, when Ron testified in a deposition in a later case, he committed perjury by denying he had been charged with making terrorist threats. The defense argued these facts were relevant because the falsehoods were relevant to Rons credibility, and the threatened retaliation was part of a pattern of conduct by Ron repeating itself in the present case. However, the defense conceded the busboy was not available to testify, and all charges except for the misdemeanor battery were dropped.
The trial court provisionally ruled that neither the conviction nor evidence of the underlying facts would be admissible, although the court stated it would revisit the issue if there was a genuine claim of self-defense by Singh or Ron claimed to be a peaceful person.
Analysis
Singh concedes the conviction itself, as well as the facts underlying the battery, was inadmissible. Singh instead asserts that three areas of evidence—Rons threats to the busboy, his lies to police, and his lies during a deposition—were admissible to impeach Rons credibility. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522-1523.) Singh argues the court erred by excluding these three areas of evidence without determining under Evidence Code section 352 whether the probative value of the evidence was outweighed by the danger of undue prejudice, or confusing the issues or misleading the jury, or the undue consumption of time. (People v. Champion (1995) 9 Cal.4th 879, 914, disapproved on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860.)
However, Singhs claim of error is not preserved for appeal. "When a trial court denies a defendants request to produce evidence, the defendant must make an offer of proof . . . to preserve the issue for consideration on appeal." (People v. Foss (2007) 155 Cal.App.4th 113, 126.) The "offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. [Citations.]" (People v. Schmies (1996) 44 Cal.App.4th 38, 53, italics added.) Here, Singh did not identify how the offer of proof would show Ron threatened the busboy; to the contrary, the only evidence in this record was that the busboy was not available. Furthermore, Singh did not describe how he would establish Ron lied to police; there is nothing in the record suggesting Singh was prepared to proffer the police officer from the 1999 incident to testify about Rons statements to police.
Singhs counsel never claimed he wished to introduce that evidence, but instead merely stated he "just wanted to bring that to the courts attention."
Finally, Singh did not articulate what evidence he proposed to introduce to show Ron lied under oath during a deposition when he denied being charged with committing a violation of section 422. However, even assuming Singhs statements below could have been construed as a proffer of the deposition transcript, the trial courts explanation for tentatively excluding that evidence appeared to conclude Rons denial, even if technically false, had little probative value. Although Singh complains the court did not engage in the required Evidence Code section 352 analysis, he has forfeited these issues by failing to raise them below. (Evid. Code, § 354, subd. (a); cf. People v. Marks (2003) 31 Cal.4th 197, 228 ["A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal"].)
The trial court stated, "I dont know how persuasive that is considering that some people think the case was dropped when [like Ron] they only got straight informal probation. But, anyway, it sounds as if the police did not believe that [Ron] . . . was actually planning to kill the [busboy]. . . [s]o, apparently, that count was dropped and then [Ron] pled guilty to [misdemeanor battery], which probably seems to make sense."
Moreover, even if the issue was not forfeited, "a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Our independent review of the record shows the trial court carefully considered Singhs proffer, heard argument from both sides before it ruled, and stated Rons deposition statements were not very "persuasive" in light of a laymans understanding of the effect of the dismissal. Because "we are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement" (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1), which we are particularly willing to do when the proponent of the evidence has taken no steps to make a formal evidentiary proffer, we will infer the court found the probative value of an isolated statement in a deposition was outweighed by the undue confusion and consumption of time that would have been required by admission of the evidence, as well as by the prejudicial effect of introducing evidence that Ron was accused of terrorist threats when those charges were never pursued, and that would have required numerous collateral inquiries into the facts giving rise to the charges and the reasons the charges were ultimately dismissed. The ruling excluding Rons deposition statement was not an abuse of discretion.
Temple Politics
Background
At the in limine hearing held before opening statements, the parties also discussed possible evidence pertaining to ongoing disputes over Temple "politics," and the impact of those disputes on the fight between Ron and Singh. The court, noting that pursuing myriad issues involving events and alliances at the Temple could create a lengthy and confusing trial, deferred consideration of the admission of such evidence because "it may clarify itself as the case goes along."
During trial, the defense elicited evidence that Ron and his father were on the board of directors of the Temple, although when asked what it meant to be on the board, Ron answered "for me, its not much." The defense also asked whether the board could vote to bar people from attending, and Ron responded "[n]o," and Ron also testified he had no recollection of persons being told either that they were unwelcome at (or were barred from attending) the Temple.
However, the court sustained objections to other attempted lines of inquiry. When Ron was asked whether he knew about lawsuits brought by any member against Temple members with whom Ron was perceived to be allied or against the Temple itself, the court sustained a relevance objection. When the defense then asked about a dispute between Ron or his family and a Mr. Shinghara Singh, the court excused the jury and held an in limine hearing to hear Singhs offer of proof and determine whether to permit the line of questioning.
Singh stated there was evidence of animosity between persons aligned with Ron and persons aligned with Singh, and this animosity would be relevant for two reasons: first, to provide an alternative explanation for animosity between Singh and Ron other than (as suggested by the prosecutions evidence) that Ron had sheltered Singhs wife; second, to the extent that a witness testified at trial supporting Rons version of the events and against Singhs version, to impeach that witness for bias in favor of Ron and against Singh were such witness aligned with Ron and an enemy of Singh or Singhs allies.
The court ruled that, even assuming there was some relevance to the disputes among Temple members, Rons testimony about such disputes would largely rely on statements he heard from others, and would be barred as hearsay. Additionally, the court noted opening the subject of Temple politics would require substantial time to "chase rumors." The prosecution argued the relevance of disputes among Temple members was speculative because there was no evidence the people involved in those disputes conspired to fabricate testimony against Singh, and therefore asked the court to exclude the evidence as irrelevant, misleading, and confusing, but also stated the prosecution would have no objection to cross-examination of any particular witness to impeach him or her for possible bias or reasons for fabricating testimony. The court ruled that, as to the specific questions posed by Singh to Ron, the prosecutions objection was sustained.
Analysis
Singh argues, because the prosecution opened the door by introducing evidence (e.g. Rons sheltering of Singhs wife) to show Singhs motive for initiating an assault on Ron, it was error to prevent Singh from introducing evidence to show Ron was hostile towards Singh (because of Rons membership in an opposing political camp), which motivated Ron to initiate the fight. Although Rons animus may have been relevant had the defense contended Singh acted in self-defense when Ron committed an unprovoked attack on him, Singh expressly stated (during the in limine hearing) he was not asserting self-defense, and his theory at trial was that he did not engage in any combat with Ron. Accordingly, it was not an abuse of discretion to conclude the probative value of any hostility harbored by Ron toward Singh had de minimus value and any such value was outweighed by the undue consumption of time and potential confusion that would have ensued had the parties been permitted to engage in wide-ranging collateral inquiries into the Byzantine alliances encompassed by Temple politics.
On appeal, Singh does not assert the court erred by excluding evidence tending to prove the various third party witnesses held biases against Singh, which biases would induce them to slant their testimony against Singh and for Ron.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HUFFMAN, Acting P. J.
OROURKE, J.