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.



                                              3
       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.



                                              7
       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

                                             8
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



                                             9
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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