People v. Brooks CA4/2

Filed 2/9/21 P. v. Brooks CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072085

v. (Super. Ct. No. SWF1600759)

DONALD VINCENT BROOKS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.

Affirmed.

Cathryn L. Rosciam, and Arthur B. Martin, under appointments by the Court of

Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

1
 I.

INTRODUCTION

Defendant and appellant, Donald Vincent Brooks, had a daughter with the victim,

Jane Doe. After they separated, defendant voluntarily gave up his custody rights to their

daughter. Defendant and Jane Doe agreed that defendant could visit his daughter, but

only on agreed-upon terms. Defendant became increasingly angry at Jane Doe when she

would not let him visit their daughter at his request, and began sending Jane Doe

threatening text messages. Defendant also showed up unannounced at Jane Doe’s

boyfriend’s workplace and at his daughter’s school when Jane Doe was picking her up,

even though Jane Doe told him not to do so.

A jury convicted defendant of one count of stalking (Pen. Code, § 646.9, subd. (a);
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count 1) and one count of making an obscene or threatening electronic communication

with the intent to annoy (§ 653m, subd. (a); count 3). The trial court sentenced defendant

to three years’ formal probation.

On appeal, defendant argues (1) substantial evidence does not support his

convictions; (2) section 653m, subdivision (a) is unconstitutionally overbroad and vague;

(3) the trial court prejudicially erred by failing to instruct the jury on the “good faith

exception” to section 653m; (4) the trial court prejudicially erred by failing to instruct the

jury that the First Amendment protects “angry and emotional speech”; (5) the trial court

prejudicially erred by excluding evidence of two investigating officers’ racial bias; (6) the

1
Unless otherwise indicated, all future statutory references are to the Penal Code.

2
 2
trial court prejudicially erred by denying his Pitchess motion; and (7) cumulative error

requires reversal of his convictions. We reject defendant’s contentions and affirm the

judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Jane Doe had a daughter in 2009. About two years later, defendant

and Jane Doe separated. They reached a formal custody agreement which included

defendant paying Jane Doe child support and their daughter visiting defendant at his

house.

Over time, defendant’s relationship with Jane Doe deteriorated. Defendant

became verbally abusive toward Jane Doe and was often angry at her. On one occasion,

Jane Doe and defendant got into an argument during which defendant said, “he was on

his way to [Jane Doe’s] house and he was going to stomp the life out of [her].” Jane Doe

did not think defendant was joking, so she called the police.

Eventually, Jane Doe thought defendant’s verbal abuse might stop if she stopped

requesting that he pay child support. Jane Doe offered to stop requesting child support

from defendant if he would agree to change their custody agreement so that Jane Doe

would have full custody of their daughter. This meant that if defendant wanted to see

their daughter, he would have to ask for Jane Doe’s permission and they would have to

come to mutually agreeable terms for the visit. Defendant agreed to the arrangement.

2
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)

3
 Nonetheless, defendant often became angry with Jane Doe if she did not allow him

to see their daughter at his request. On one such occasion in October 2015, defendant

texted Jane Doe, saying that he was “overdue to act a fool” and “overdue to clown,” and

that Jane Doe “understand[s] things better” when defendant “show[s] [his] ass.”

Defendant told Jane Doe that he knew where she lived, he would “show up whenever [he

got] ready,” he did not “give a f--k who is there,” and that the police would “take their

time” if she called them. He also told her, “I pray that you get beat within an inch of your

life,” that she needed to be “flushed,” and that “[f]olks talked me out of hurting you.

Sometimes I wish [they] wouldn’t have. You need to be hurt to get a clue.” Defendant

testified that he meant Jane Doe needed to get physically hurt so she could understand

how she was hurting their daughter. Jane Doe interpreted these text messages to mean

that defendant was going to “act crazy” and come over to her house and hurt her.

On another occasion, defendant texted Jane Doe and told her that he was going to

her boyfriend’s workplace to talk to him. Defendant then texted Jane Doe, “Nope I’m

not going to do that. I have other plans for you. What I have learned over the years

nothing beats the element of surprise. I’m telling you it’s going to be like nothing you

have ever heard of. It will take the wind out of your sail. Lol. Patience is a virtue.

What’s wrong [Jane Doe] are you upset because I am in the know? . . . [Y]ou aren’t

to[o] vigilant. You walked right by me one night. I’m smooth.” Jane Doe found these

text messages “scary” because she believed they showed defendant was following her.

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 Around Christmas in 2015, Jane Doe refused to allow defendant to visit with their

daughter on his terms. Defendant responded by texting Jane Doe, “I will see you

Christmas Eve night. If you want problems you have them.” Defendant later replied, “I

will be there Christmas Eve. Try me [Jane Doe] I am beggging [sic] you. If anyone

touche[s] me they will get hurt. That is a promise. . . . My fingers are crossed. Google

when fathers snap. I will be there at 9:00 Christmas Eve I don’t care who is there they

are a fool if they get in my way. . . . [I]t’s time for me to let loose. I told your family to

stay away. You say I’m a [n-word] I will show you one [Christmas Eve] Night.”

Defendant also told Jane Doe many times that she should kill herself. He texted

her things such as, “[j]ump and get it over with,” and “[p]lease off yourself I know I deal

with an idiot when I deal with you. I don’t wish death on anyone but I would be happy

when you are gone.” Defendant also texted Jane Doe stories of women and mothers who

had committed suicide. These text messages made Jane Doe feel threatened and scared

because she thought defendant might kill her.

When Jane Doe refused to let defendant pick their daughter up from school, he

responded by texting Jane Doe, “You have been lucky not getting hurt,” and that

“somebody talked [him] out of hurting” her. Defendant also said he would go to Jane

Doe’s boyfriend’s workplace and “stir up some shit.” Defendant continued, “Nobody

will fuck with me either. I’m crazy and dangerous at the same time.” Later that day,

defendant texted Jane Doe a picture of his wristband, which showed that he had been at

5
her boyfriend’s workplace. Defendant said, “This place has tight security. I got through

with ease.”

Defendant showed up at his daughter’s school the next day even though Jane Doe

told him he could not pick her up. Defendant walked over to Jane Doe’s car and said that

he was there to pick up his daughter and that he would hurt anyone who got in his way

while making a punching motion with his fist. Afraid, Jane Doe drove away and called

911.

Police arrived and escorted Jane Doe away from the school, but defendant

followed them. When Jane Doe reached the city limits, the officer stopped escorting her.

Defendant waved at the officer and continued following Jane Doe.

Defendant was charged with one count of stalking (§ 646.9, subd. (a); count 1) for

his behavior toward Jane Doe between October 2015 and April 2016, one count of

making a criminal threat (§ 422; count 2); and three counts of making an obscene or

threatening electronic communication with the intent to annoy (§ 653m, subd. (a); counts

3-5). The jury convicted defendant of stalking (count 1), and of making an obscene or

threatening electronic communication with the intent to annoy on count 3, which

pertained to defendant’s text messages to Jane Doe in October 2015, but acquitted

defendant on counts 2, 4, and 5.

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 III.

DISCUSSION

A. Substantial Evidence Supports Defendants’ Convictions

Defendant contends his convictions must be reversed because they are not

supported by substantial evidence. We disagree.

1. Applicable Law and Standard of Review

“When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of

the judgment the existence of every fact the trier of fact reasonably could infer from the

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,

reversal of the judgment is not warranted simply because the circumstances might also

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither

reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)

45 Cal.4th 1, 27.)

“‘Although it is the duty of the jury to acquit a defendant if it finds that

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt

and the other innocence [citations], it is the jury, not the appellate court which must be

convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances

7
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.’” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We

may reverse a conviction for a lack of substantial evidence only if it appears “‘“that upon

no hypothesis whatever is there sufficient substantial evidence”’” to support the

conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)

2. Analysis

Stalking someone in violation of section 649.9, subdivision (a) has three elements.

“The first element of stalking is ‘willfully, maliciously, and repeatedly follow[ing] or

willfully and maliciously harass[ing] another person.’” (People v. Uecker (2009) 172

Cal.App.4th 583, 594.) “Harassing” another person “means engages in a knowing and

willful course of conduct directed at a specific person that seriously alarms, annoys,

torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd.

(e).) “‘[C]ourse of conduct’ means two or more acts occurring over a period of time,

however short, evidencing a continuity of purpose. Constitutionally protected activity is

not included within the meaning of ‘course of conduct.’” (§ 646.9, subd. (f).) “The

second element is ‘mak[ing] a credible threat.’” (People v. Uecker, supra, at p. 594.)

“The third element of stalking is intending to place the victim in reasonable fear for

safety.” (Id. at p. 595.)

The record amply supports the jury’s finding that all three elements were satisfied.

Over several months, defendant sent Jane Doe many threatening text messages. Among

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other threatening comments, defendant told Jane Doe that (1) he knew where she lived;

(2) he would show up to her house more than once; (3) he was “overdue” to act out

violently; (4) she needed “to get hurt”; (5) she should be more “vigilant”; (6) she walked

past him in public, but she did not see him because he’s “smooth”; (7) she should kill

herself; (8) he was “crazy” and “dangerous”; (9) she was “lucky” that he had not hurt her;

and (10) people had talked him out of hurting her.

Defendant also showed up to their daughter’s school to pick her up the day after

Jane Doe told him not to do so. While there, defendant told Jane Doe he would pick up

his daughter and that he would hurt anyone who got in his way and made a punching

motion. Defendant then followed Jane Doe as she was escorted away from the school by

a police officer. When they reached the city limits and the officer stopped escorting Jane

Doe, defendant continued following her.

From this evidence, the jury could reasonably conclude that (1) defendant

intentionally and repeatedly harassed or followed Jane Doe several times; (2) credibly

threatened her; and (3) intended his conduct to make Jane Doe fear for her safety.

Substantial evidence thus supports defendant’s stalking conviction (count 1).

We reach the same conclusion as to count 3. To convict defendant of violating

section 653m, subdivision (a), the jury had to find that, in October 2015, defendant (1)

contacted Jane Doe “by means of an electronic communication device”; (2) that he did so

willfully and with the intent to annoy her; and (3) that, in doing so, he “addresse[d]”

“obscene language” or a “threat to inflict injury” to Jane Doe. (§ 653m, subd. (a).)

9
 Substantial evidence supports the jury’s findings that all three elements were

satisfied. There is no dispute that defendant sent Jane Doe several text messages in

October 2015. Defendant also does not dispute that several of the “scary” texts he sent

Jane Doe in October 2015 were intended to annoy and irritate her. Nor does he dispute

that many of those texts contained threats to hurt Jane Doe. On this record, the jury

reasonably concluded that defendant violated section 653m, subdivision (a).

Defendant argues his stalking conviction must be reversed because his conduct

served a “legitimate purpose” of trying to see his daughter. (See § 646.9, subd. (e)

[harassment “serves no legitimate purpose”].) For the same reason, he argues his conduct

was in “good faith” and therefore his conviction on count 3 must be reversed. (See

§ 653m, subd. (a) [“Nothing in this subdivision shall apply to telephone calls or
3
electronic contacts made in good faith.”].)

We disagree. The case defendant mainly relies on, J.J. v. M.F. (2014) 223

Cal.App.4th 968, does not support his position that his communications to Jane Doe were

legitimate and in good faith. In that case, a mother made several calls to her child’s

father about whether their son had a jacket. (Id. at p. 976.) She made the “repeated calls

because her very young son was ill, the weather was cold when she took him to daycare

in the morning, and the child had only the one warm jacket.” (Ibid.) There was nothing

3
Because we reject this argument, we need not address the People’s argument
that “[b]ecause a lack of good faith is not an element of the offense, it follows that the
prosecution had no burden of proof in this respect and [defendant’s] sufficiency claim
must fail.”

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threatening about the calls, and “[a]s a mother concerned about her child’s health, she had

a legitimate and nonharassing reason to contact the father.” (Ibid.) She therefore did not

violate section 653m, subdivision (a) because she “made the phone calls in good faith”

because they only concerned her child’s well-being. (Ibid.)

The same cannot be said about defendant’s text messages to Jane Doe. Although

defendant’s desire to see his daughter was legitimate and he sometimes expressed that

desire in good faith, several of his text messages were not sent in good faith or for a

legitimate purpose. As defendant acknowledged, he sent Jane Doe several non-

threatening text messages pleading with her to let him see their daughter and asking her

“to change how she handled things” related to their daughter. Those text messages were

legitimate and sent in good faith. (See J.J. v. M.F., supra, 223 Cal.App.4th at p. 976.)

But we cannot conceive of any legitimate reason for defendant’s telling Jane Doe

that she “needed to get hurt,” he knew where she lived, he was “overdue to act a fool,”

she should “jump and get it over with,” she “understands better when [he] show[s] his

ass,” or that people had dissuaded him from hurting her. There was similarly no

legitimate reason for defendant to show up at his daughter’s school, make threatening

comments to Jane Doe, and then following her while a police officer escorted her away.

It does not matter that defendant sent threatening text messages to Jane Doe because he

wanted to see his daughter. (See People v. Johnson (2015) 61 Cal.4th 734, 755

[defendant liable under section 653m for making threatening phone calls even though he

intended calls to stop wife’s affair].) Because the jury could reasonably conclude that

11
defendant’s conduct was not legitimate or made in good faith, substantial evidence

supports defendant’s convictions.

B. Whether Section 653m, Subdivision (a) Is Unconstitutionally Overbroad or

Vague

Defendant asserts his conviction on count 3 must be reversed because section

653m, subdivision (a) is unconstitutionally overbroad and vague. We disagree that the

statute is unconstitutionally overbroad. We also conclude that even if it is

unconstitutionally vague, defendant fails to show any resulting prejudice.

People v. Hernandez (1991) 231 Cal.App.3d 1376, forecloses defendant’s

argument that section 653m, subdivision (a) is overbroad. There, the court considered

and rejected the defendant’s overbreadth challenge to section 653m, subdivision (a),

concluding that the statute is not unconstitutionally overbroad. (Id. at p. 1382.) We find

Hernandez persuasive. We therefore follow Hernandez and conclude that section 653m,

subdivision (a) is not unconstitutionally overbroad.

Defendant argues section 653m, subdivision (a) is vague because it criminalizes

“obscene” language, but does not explain whether language is “obscene” if the recipient

is offended by it or whether the average person would find it offensive.

Section 653m, subdivision (a), however, “not only prohibits intentional and

annoying phone calls using obscene language, but also intentionally annoying phone calls

which threaten to inflict injury.” (People v. Hernandez, supra, 231 Cal.App.3d at p.

1385.) The evidence that defendant sent Jane Doe threatening text messages is

12
substantial while there is minimal, if any, evidence or argument that he sent her

“obscene” text messages. Indeed, the People emphasize on appeal that the text messages

were threatening, but do not argue they were obscene. Defendant also does not point to

anything in the record that suggests the jury convicted him for sending “obscene” text

messages rather than for sending threatening ones.

It is thus highly likely that jury convicted defendant for sending threatening text

messages, not “obscene” ones. So even if the obscene language in section 653m,

subdivision (a) is unconstitutionally vague and thus the trial court erred in instructing the

jury on obscenity, the error was harmless under any standard because it is not reasonably

probable that the jury convicted defendant for sending Jane Doe “obscene” text messages

rather than threatening ones. (See People v. Watson (1956) 46 Cal.2d 818, 836;

Chapman v. California (1967) 386 U.S. 18, 24.)

C. The Trial Court Did Not Have to Instruct the Jury on the Good Faith

Exception to Section 653m, Subdivision (a)

Section 653m, subdivision (a) provides that it does not “apply to telephone calls or

electronic contacts made in good faith.” Defendant contends the trial court erred by

failing to sua sponte instruct the jury on this provision because, in his view, the lack of

good faith is an element of a section 653m, subdivision (a) offense that the People had to

prove. Reviewing the claim de novo, we disagree. (People v. Guiuan (1998) 18 Cal.4th

558, 569.)

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 “In criminal cases, even in the absence of a request, a trial court must instruct on

general principles of law relevant to the issues raised by the evidence and necessary for

the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)

This obligation includes instructing on all elements of a charged offense. (People v.

Cummings (1993) 4 Cal.4th 1233, 1311, overruled on another ground in People v. Merritt

(2017) 2 Cal.5th 819, 831.) “When a statute first defines an offense in unconditional

terms and then specifies an exception to its applicability, the exception is generally an

affirmative defense to be raised and proved by the defendant.” (People v. Lam (2004)

122 Cal.App.4th 1297, 1301.)

For instance, in People v. Lam, supra, 122 Cal.App.4th at page 1301, the court

addressed section 247, subdivision (b), which provides: “Any person who discharges a

firearm at an unoccupied motor vehicle or an uninhabited building or dwelling house is

guilty of a public offense punishable by imprisonment in the county jail for not more than

one year or in the state prison. This subdivision does not apply to shooting at an

abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the

permission of the owner.” The Lam court explained that the statute “defines the offense

first in unconditional terms before it specifies the exception to the statute’s applicability,”

and thus the statute “shows the owner’s nonconsent is not an element of the crime for

which the prosecution has the burden of proof.” (People v. Lam, supra, at p. 1301.)

Instead, “it is an affirmative defense to be raised and proved by the defendant.” (Ibid.)

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 People v. Luera (2001) 86 Cal.App.4th 513 involved similar statutory provisions

in section 311.11, which prohibits the possession of child pornography. Subdivision (e)

of section 311.11 provides in part that “[t]his section does not apply to drawings,

figurines, statues, or any film rated by the Motion Picture Association of America

[(MPAA)].” The Luera court found that “an MPAA rating simply operates as a kind of

affirmative defense under section 311.11.” (People v. Luera, supra, at p. 520.)

Section 653m, subdivision (a) is analogous to the statutes at issue in Lam and

Luera. Section 653m, subdivision (a) defines the three elements of the offense, and then

states that the statute does not “apply to telephone calls or electronic contacts made in

good faith.” The good-faith exception therefore is an affirmative defense to a charge

under section 653m, subdivision (a) that defendant had to prove. The People did not
4
need to prove that defendant did not send his text messages to Jane Doe in good faith.

The trial court therefore did not err by not instructing the jury on the good-faith exception

to section 653m, subdivision (a).

D. The Trial Court Did Not Prejudicially Err By Failing to Instruct the Jury on

Constitutionally Protected Speech

Defendant contends the trial court erred by failing to sua sponte instruct the jury

that “angry and emotional speech” is protected under the California and federal

4
We decline to address defendant’s other arguments on this issue made for the
first time in his reply brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9
[declining to address claim of ineffective assistance of counsel raised by defendant for
the first time in reply brief].)

15
constitutions, which he claims was an affirmative defense to his offenses. Even if the

trial court erred in failing to instruct the jury about constitutionally protected speech, any

error was harmless beyond a reasonable doubt. (See People v. Salas (2006) 37 Cal.4th

967, 984 [holding trial court’s failure to instruct on an affirmative defense was harmless

beyond a reasonable doubt].) This is because the record shows defendant engaged in a

harassing, threatening course of conduct toward Jane Doe.

As outlined in more detail above, defendant’s conduct was not in good faith and

several of his October 2015 text messages to Jane Doe served no legitimate purpose.

Defendant told Jane Doe she “needed to be hurt,” that he was “overdue to act a fool,”

“overdue to clown,” and that he knew where Jane Doe lived and would “show up

whenever.” Defendant also told Jane Doe she needed to be “flushed,” that he would

come to her house and “let loose,” and that he was “crazy and dangerous.” He told Jane

Doe she was not “vigilant” because she walked by him in public without noticing because

he is “smooth.”

None of this speech can be considered constitutionally protected as mere “angry

and emotional speech.” These and other texts to Jane Doe were threatening, harassing,

and intended to “annoy” and “irritate” her. They made Jane Doe fear for her safety, they

were not in good faith, and they served no legitimate purpose. We therefore conclude

that, even if the trial court instructed the jury on constitutionally protected speech, no

reasonable juror would conclude that all of defendant’s speech underlying counts 1 and 3

16
was simply “angry and emotional” speech. The trial court therefore did not prejudicially

err by not instructing the jury on constitutionally protected speech.

E. The Trial Court Properly Denied Defendant’s Motion in Limine

Defendant contends the trial court prejudicially erred by excluding evidence that

two investigating officers are biased against African Americans. We disagree.

1. Additional Background

Defendant moved in limine to admit evidence that two officers who investigated

defendant’s offenses, Investigators Cornett and Pelato, have a history of racial animus

toward African Americans, including African American Riverside County Sheriff’s

deputies, such as defendant. Defendant offered the testimony of two former Riverside

County Sheriff’s deputies, Harold Odom and Terry Jones. He claimed Odom would

testify that Pelato was disciplined for using excessive force and a racial epithet against an

African American arrestee, and Jones would testify that Cornett “often negatively

brought up race as a topic of conversation,” and thought an African American officer was

promoted because of his race. Jones would explain that Cornett was internally

investigated for his comments about the officer’s promotion.

Defendant explained that Jones would also testify that Cornett and Pelato

investigated him on an allegation of domestic violence and found illegal steroids in his

home when they executed a search warrant. Jones pled guilty to a lesser charge and was

fired based on a finding, which was later reversed, that he lied to the investigators about

the steroids. According to Jones, Pelato’s report about the incident did not include

17
Jones’s exculpatory statements and Pelato and Cornett recommended Jones’s bail be set

at an excessive amount. Defendant claimed Cornett’s report into his offenses was

“similarly one-sided” and Cornett likewise requested that defendant’s bail be set at an

excessive amount. Defendant also suggested that Cornett was responsible for

downloading defendant’s cell phone information, and the download was incomplete in

that it lacked “call logs for certain crucial dates.”

The trial court denied defendant’s motion under Evidence Code section 352. The

trial court found there was “no nexus or correlation” between Cornett’s and Pelato’s

alleged racial animus and defendant’s conduct. The court reasoned that the alleged

missing data from defendant’s cell phone “can be explored without the bias allegation”

and the “major component of this case” was Jane Doe’s credibility.

2. Applicable Law and Standard of Review

“Under Evidence Code section 352, the probative value of the proffered evidence

must not be substantially outweighed by the probability that its admission would create

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

(People v. Cole (2004) 33 Cal.4th 1158, 1195.) Because the decision to admit or exclude

evidence under Evidence Code section 352 is committed to the trial court’s discretion, we

will not disturb a trial court’s exercise of that discretion “‘“except on a showing the trial

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice.”’” (Uspenskaya v. Meline (2015) 241

Cal.App.4th 996, 1000-1001.)

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 3. Analysis

We conclude the trial court did not abuse its discretion under Evidence Code

section 352 by excluding evidence of Cornett’s and Pelato’s alleged racial animus toward

African Americans. Evidence of racial animus can be relevant to show bias. (See Evid.

Code, § 210; People v. Quartermain (1997) 16 Cal.4th 600, 628 [defendant’s use of

racial epithets against murder victim relevant to show premeditation and deliberation].)

But the trial court still may exclude relevant evidence if its probative value is not

substantial. (Evid. Code § 352; People v. Hill (1995) 34 Cal.App.4th 727, 738.)

Here, the trial court found there was “no nexus or correlation” between Cornett’s

and Pelato’s alleged racial animus and defendant’s offenses. In other words, the trial

court found that, even if true, evidence related to their prejudice against African

Americans did not have substantial probative value. The trial court reasonably reached

this conclusion and thus did not abuse its discretion.

As the trial court correctly observed, defendant’s claim that Cornett manipulated

or deleted defendant’s cell phone data “could be explored” without delving into Cornett’s

purported racial bias. Cornett’s and Pelato’s alleged discriminatory comments and

behavior toward African American colleagues likewise had little, if any, relevance to

defendant’s offenses. For one thing, Jane Doe was the principal witness. As the trial

court correctly noted, the credibility of her testimony was the “major component” of this

case.

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 Defendant also did not dispute sending Jane Doe the text messages underlying his

convictions. Nor did he dispute Jane Doe’s accusations against him. His defense was

that he was entitled to say what he said to Jane Doe because he wanted to see his

daughter. Thus, the trial court reasonably found that Cornett’s and Pelato’s alleged racial

bias, even if true, had minimal relevance to the evidence and the issues for the jury to

decide. The trial court’s ruling was not arbitrary, capricious or patently absurd such that

it resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th

1060, 1124.) We therefore conclude the trial court did not abuse its discretion in denying

defendant’s motion in limine and excluding evidence related to Cornett’s and Pelato’s

alleged racial bias.

F. The Trial Court Properly Denied Defendant’s Pitchess Motion

Before trial, defendant filed a Pitchess motion in which he alleged, among other

things, that Cornett and Pelato were racially biased against him. Defendant thus

requested that the trial court conduct an in camera review of their personnel files to

determine if there was any information related to their alleged racial bias or “acts of

dishonesty.” The trial court denied the motion. Defendant filed a motion for

reconsideration, which the trial court granted in part as to Cornett. The trial court ordered

the People to produce some of Cornett’s records that pertained to his credibility and

20
 5
honesty. The court, however, denied the rest of defendant’s Pitchess motion. We

conclude the trial court did not err in doing so.

We review the trial court’s order denying a Pitchess motion for an abuse of

discretion. (People v. Memro (1985) 38 Cal.3d 658, 683.) To obtain an officer’s records

under Pitchess, the defendant must show good cause for the discovery. (Evid. Code,

§ 1043, subd. (b).) “Good cause for discovery exists when the defendant shows both

‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that

the agency has the type of information sought.’ [Citation.] A showing of good cause is

measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial

court review of ‘all potentially relevant documents.’ [Citation.]” (Warrick v. Superior

Court (2005) 35 Cal.4th 1011, 1016.) “[A] showing of good cause requires a defendant

seeking Pitchess discovery to establish not only a logical link between the defense

proposed and the pending charge, but also to articulate how the discovery being sought

would support such a defense or how it would impeach the officer’s version of events.”

(Id. at p. 1021.)

Defendant failed to make such a showing. As explained above, defendant’s

primary defense was that his conduct underlying his convictions was legitimate and in

good faith, and thus constitutionally protected. Put another way, defendant argued he did

5
Defendant requests that we review the trial court’s in camera hearing on
defendant’s Pitchess motion to ensure the trial court ordered the disclosure of all
information related to Cornett’s credibility. Our review of the hearing transcript confirms
that the trial court ordered the disclosure of all information in Cornett’s personnel file that
the trial court found related to his credibility.

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not have the requisite intent. Cornett and Pelato’s alleged racial bias therefore had

nothing to do with defendant’s defense because it could not have affected defendant’s

intent.

Defendant also claims evidence of Cornett and Pelato’s alleged racial bias was

relevant to his defense that he would not have been arrested in the first place but for their

animus toward African Americans. Even if true, and even if the trial court abused its

discretion in denying defendant’s Pitchess motion, any error was harmless. (See People

v. Samuels (2005) 36 Cal.4th 96, 110 [“[E]ven if the trial court erred because defendant

made a showing of good cause in support of his [Pitchess] request . . . , such error was

harmless [under Watson].”]; People v. Memro, supra, 38 Cal.3d at p. 684 [“It is settled

that an accused must demonstrate that prejudice resulted from a trial court’s error in

denying discovery.”].)

Although defendant contends Cornett arrested him because Cornett had “an axe to

grind” with him and he challenges their “version of events” outlined in their report,

defendant does not dispute on appeal that Cornett had probable cause to arrest him based

on his text messages. Shortly after the incident at their daughter’s school, Jane Doe sent

copies of defendant’s text messages and the restraining order she obtained against him to

the Riverside County Sheriff’s Department. At that point, Jane Doe “[was] looking for

help” because she thought “things had gotten to the point where there was nothing else

for [defendant] to do but actually follow through with the threats.” The matter was

assigned to Cornett and Pelato. Cornett later obtained a warrant to search defendant’s

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phone. Based on an interview with Jane Doe, defendant, and a review of defendant’s text

messages to her, Cornett determined there was probable cause to arrest defendant. In

turn, the trial court found defendant’s text messages showed there were reasonable

grounds to conclude defendant had committed the charged offenses.

On this record, we conclude any information related to Cornett or Pelato’s alleged

racial animus would not have affected the validity of defendant’s arrest or his

convictions. Because it is not reasonably probable that defendant would have obtained a

more favorable result had the trial court granted his Pitchess motion in full, we conclude

the trial court did not prejudicially err by denying the motion in part. (People v. Samuels,

supra, 36 Cal.4th at p. 110.)

G. There Was No Prejudicial Cumulative Error

Defendant asserts that the cumulative effect of his claimed errors warrants

reversal. “‘[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error.’” (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) “The ‘litmus test’ for cumulative error ‘is

whether defendant received due process and a fair trial.’” (People v. Cuccia (2002) 97

Cal.App.4th 785, 795.)

We have assumed for the sake of argument that the trial court erred by failing to

instruct the jury on constitutionally protected speech and denying in part defendant’s

Pitchess motion. We have also assumed that section 653m, subdivision (a) is

unconstitutionally vague. The assumed errors were individually harmless, and “were no

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more prejudicial together.” (People v. Poletti (2015) 240 Cal.App.4th 1191, 1217.) Even

considering the assumed errors in the aggregate, defendant was not deprived of a fair trial

or denied due process. “Lengthy criminal trials are rarely perfect, and this court will not

reverse a judgment absent a clear showing of a miscarriage of justice.” (People v. Hill

(1998) 17 Cal.4th 800, 844.) Defendant has not made such a showing. As a result, we

reject defendant’s claim of cumulative error.

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

MILLER
Acting P. J.

MENETREZ
J.

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