Filed 5/18/16 P. v. Lindholm CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068221
Plaintiff and Respondent,
v. (Super. Ct. No. SCN327198)
MARK CLIFFORD LINDHOLM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard R.
Monroy, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
On April 23, 2014, Mark Clifford Lindholm was charged with making criminal
threats (Pen. Code,1 § 422, count 1) and two counts of assault with a deadly weapon
(§ 245, subd. (a)(1), counts 2, 3). Additionally, the information alleged that in the
commission of counts 2 and 3, Lindholm used a dangerous and deadly weapon (§ 1192.7,
subd. (c)(23)) and inflicted great bodily injury (§ 12022.7, subd. (a); § 1192.7,
subd. (c)(8)).
These charges stemmed from a fight that occurred between Lindholm, Michael
Morales and Sam Smylie. Both Lindholm and Smylie had prior felony assault
convictions. At the time of the incident, both Lindholm and Smylie were on probation
for their prior convictions. Prior to the commencement of trial, the prosecution moved to
"sanitize" Smylie's prior conviction, that is to limit its description as a "felony
conviction" without stating the underlying crime. Lindholm objected, arguing that he
should be able to question Smylie on the conduct in his prior conviction to establish that
it involved violence or felony assault. The trial court ordered both Lindholm's and
Smylie's prior convictions "sanitized." Ultimately, the jury found Lindholm guilty as
charged.2 The jury also found true the allegation that Lindholm personally used a
dangerous and deadly weapon and inflicted great bodily injury in the commission of
counts 2 and 3. Lindholm was sentenced to an aggregate term of six years in prison.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 This statement refers to the jury in the second trial, as explained below.
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On appeal, Lindholm argues that his conviction must be reversed because the trial
court abused its discretion by ordering Smylie's prior conviction to be sanitized, which
resulted in a violation of Lindholm's constitutional rights to due process and to present a
defense. The People argue that the trial court carefully and appropriately weighed the
relevant factors under Evidence Code section 352 and reasonably concluded that Smylie's
prior conviction should be sanitized. We agree and conclude that the trial court did not
err in sanitizing Smylie's prior felony conviction.
FACTUAL AND PROCEDURAL BACKGROUND
This case arose from a fight that occurred in Lindholm's front yard on
December 29, 2013. Lindholm shared a house with Jake Keeton and Keeton's mother,
Carrie Pierson. Lindholm's room was on the side of the house with its own outside door.
On the day of the incident, Keeton invited several friends over, including Michael
Morales, Sam Smylie, Jackie Benitez, Emily Sears and Dillon Depolo. Morales, Smylie
and Depolo went outside to the front yard to smoke cigarettes. While outside, they
noticed that Lindholm was acting weird, appeared angry and was yelling in the direction
of the wall.
Sears testified that she saw Lindholm asking Smylie and Morales not to smoke
cigarettes near his door. Shortly thereafter, Morales, Smylie and Depolo decided to
leave. In order to leave, they had to walk past Lindholm's door to get to their vehicle. As
they walked passed Lindholm's doorway, Lindholm looked at them and stated that he was
going to slit their throats.
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Smylie testified that he felt scared because Lindholm looked him personally in the
eyes and said, "I'll slit your throat." After Lindholm made these comments, Morales
asked Lindholm twice if he was making a threat. Morales then told Lindholm that he
could call the police to report Lindholm's threats. Lindholm then charged at Morales and
a fight broke out. During the fight, Smylie ran over to help Morales and punched
Lindholm on the side of his face. Lindholm then turned and attacked Smylie. After the
two exchanged blows, Lindholm and Smylie ended up on the ground. Smylie testified
that he felt sharp pain as Lindholm hit him. Morales now felt he needed to help Smylie,
and once again joined the fight and began throwing punches at Lindholm. The fight
finally ended when Keeton's mother came out and yelled at them to stop.
After the fight, Smylie told Morales that he had been stabbed and had blood
dripping from his head. Depolo drove Morales and Smylie to the hospital where it was
discovered that Smylie had sustained multiple sharp force injuries to his chest and head
that required staples to close. Also, Morales suffered a cut to a tendon on his left hand
that required surgery.
Later that evening, Escondido Police Officer Robert Craig arrested Lindholm at
his residence. Officer Craig searched Lindholm's residence for a knife and found garden
shears in the wooden cabinet of the bathroom.
Lindholm was charged with making criminal threats and two counts of assault
with a deadly weapon (§ 422; § 245, subd. (a)(1)). On October 2, 2014, the trial court
declared a mistrial after the jury was unable to reach a decision on all three counts.
Retrial commenced on April 1, 2015.
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Prior to trial, the prosecution moved to sanitize Smylie's prior felony assault
conviction, for which he was still on probation. Lindholm was also on probation for a
prior felony assault conviction. The trial court ordered both Smylie and Lindholm's prior
felony convictions be "sanitized."3 In the second trial, the jury found Lindholm guilty on
all counts, including the allegation that Lindholm personally used a dangerous and deadly
weapon in the commission of counts 2 and 3. The jury also found that Lindholm
personally inflicted great bodily injury upon Smylie and Morales. Lindholm timely filed
a notice of appeal.
DISCUSSION
Lindholm argues that the trial court erred by sanitizing Smylie's prior felony
assault conviction, under Evidence Code section 352, because it lessened the
persuasiveness and strength of the evidence establishing Smylie's motive to lie. As a
result, Lindholm contends that the exclusion of this evidence resulted in the denial of
Lindholm's constitutional rights to due process and the right to present a defense. We
disagree.
A. Legal Principles
"Except as otherwise provided by statute, all relevant evidence is admissible."
(Evid. Code, § 351; People v. Williams (2008) 43 Cal.4th 584, 633 (Williams).) Relevant
evidence is defined as evidence "having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action." (Evid. Code,
3 In the first trial, Smylie's prior felony conviction was not sanitized and the defense
was allowed to cross-examine Smylie regarding the nature of his prior without objection.
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§ 210.) Evidence is relevant if it tends " ' "logically, naturally, and by reasonable
inference" to establish material facts such as identity, intent, or motive.' " (Williams,
supra, at p. 633.) The "existence or nonexistence of a bias, interest, or other motive" on
the part of a witness ordinarily is relevant to the truthfulness of the witness's testimony.
(Evid. Code, § 780, subd. (f); Williams, supra, at p. 634.)
Evidence Code section 352 provides: "The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury." We have long
recognized that "[t]he trial court has considerable discretion in determining the relevance
of evidence." (Williams, supra, 43 Cal.4th at p. 634.)
Evidence Code section 352 accords the trial court broad discretion to exclude even
relevant evidence if its probative value is substantially outweighed by the danger of
undue prejudice. (People v. Waidla (2000) 22 Cal.4th 690, 724.) We review a trial
court's ruling under Evidence Code section 352 for an abuse of discretion. (People v.
Clark (2011) 52 Cal.4th 856, 893; Williams, supra, 43 Cal.4th at pp. 634-635.) A trial
court's discretionary ruling "must not be disturbed on appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308,
316.)
Character evidence is generally admitted under Evidence Code section 1101,
which provides: "(a) Except as provided in this section and in Sections 1102, 1103,
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1108, and 1109, evidence of a person's character or a trait of his or her character (whether
in the form of an opinion, evidence of reputation, or evidence of specific instances of his
or her conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that the victim
consented) other than his or her disposition to commit such an act."
Relevant here, Evidence Code section 1103, subdivision (a)(1) states: "(a) In a
criminal action, evidence of the character or a trait of character (in the form of an
opinion, evidence of reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made inadmissible
by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of
the victim in conformity with the character or trait of character."
B. Analysis
Lindholm contends that the evidence of Smylie's prior assault conviction is
substantially more probative than prejudicial, and the exclusion of that evidence resulted
in the denial of Lindholm's constitutional rights to due process and the right to present a
defense. Thus, Lindholm argues, reversal is required here, unless we find the error to be
harmless. We disagree.
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Prior to trial, the defense requested that Lindholm's 2011 conviction for violating
section 245, subdivision (a)(1) be sanitized so that the nature of his prior conviction may
not be raised by the prosecution for impeachment purposes. Similarly, the prosecution
requested that Smylie's prior felony assault conviction be sanitized to the same extent.
The trial court, pursuant to Evidence Code section 352, decided to sanitize both Smylie
and Lindholm's convictions and instructed the attorneys to refer to those convictions
simply as "prior felony convictions" and nothing more. The trial court explained its
reasoning and stated that the ruling "addresses in the most appropriate fashion the ability
to impeach without clouding the waters, so to speak, for the jury in evaluating the
particular circumstances of this assault."
Lindholm argues that he should have been allowed to discuss the nature and
details of Smylie's prior felony conviction for impeachment purposes under Evidence
Code section 788. Lindholm wanted to use Smylie's prior conviction for assault to show
the jury his motive to lie and to persuade the jury that Smylie was the aggressor, and not
Lindholm. Lindholm was allowed to question Smylie about his probation status relating
to the prior conviction. On direct examination, the prosecution asked Smylie if he had a
prior felony conviction and if he was on probation at the time of the incident for that
conviction. On cross-examination, the defense was allowed to elicit the date of Smylie's
prior conviction, his probation status and conditions, and the punishment he faces should
he be found in violation of his probation. The jury heard testimony from Smylie that if
he violated his probation he would get six months in jail. The jury also heard testimony
that, as a condition to his probation, Smylie is not allowed to use force or violence on
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anyone. Nevertheless, Lindholm argues he should have been allowed to inform the jury
that Smylie's prior conviction was for assault. Lindholm claims that the nature of
Smylie's prior conviction was relevant and important to the determination of Smylie's
credibility and to Lindholm's claim of self-defense.
The admissibility of character evidence used for the purpose of showing that
Smylie was the aggressor, and that Lindholm acted in self-defense, is governed by
Evidence Code section 1103. Lindholm has not argued that evidence of the nature of
Smylie's prior conviction should have been admitted pursuant to Evidence Code section
1103, nor did he make any effort to admit evidence under that section. Instead, Lindholm
is attempting to have the details of Smylie's prior conviction introduced under Evidence
Code section 788, which applies exclusively to evidence of credibility.
Lindholm claims prejudice in not being allowed to introduce evidence of the
nature of Smylie's prior conviction introduced to discredit Smylie's testimony. Smylie
was only one of four eyewitnesses. Thus, any error in sanitizing Smylie's prior
conviction would have little effect when considering the evidence in its entirety and the
testimony of the other witnesses. Additionally, Lindholm already made the jury aware of
Smylie's probation status, and made the corresponding argument that it gave Smylie a
motive to lie. Any additional evidence of Smylie's prior conviction for the purpose of
showing that Smylie had a motive to lie would be redundant. Moreover, evidence of
Smylie's prior conviction for the purpose of showing that Smylie was the aggressor may
only be admitted pursuant to Evidence Code section 1103 for which no foundation was
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established. For these reasons, we conclude that the trial court acted well within its
discretion in sanitizing Smylie's prior felony conviction.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
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