Filed 10/25/13 P. v. Brummitt CA2/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B239265

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA052447)
         v.

SHILOH RAYWOLFGANG
BRUMMITT,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Charles
Chung, Judge. Affirmed.
         Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ——————————
       Shiloh Raywolfgang Brummitt appeals his convictions, after a jury trial, of false
imprisonment by violence, kidnapping, criminal threats, assault with a deadly weapon,
disobeying a domestic relations order, and battery. We affirm.
                                      BACKGROUND
       The Los Angeles County District Attorney filed an information charging Brummitt
with false imprisonment by violence (Pen. Code, § 236; count 1),1 corporal injury to a
spouse (§ 273.5, subd. (a); count 2), kidnapping (§ 207, subd. (a); count 3), criminal
threats (§ 422; count 4), assault with a deadly weapon (§ 245, subd. (a)(1); count 5),
disobeying a domestic relations court order (§ 273.6, subd. (a); count 6), and battery
(§ 243, subd. (e)(1); count 7).
       As to count 4, it was further alleged that Brummitt personally used a deadly and
dangerous weapon (a bayonet) in the commission and attempted commission of the
offense (§ 12022.1, subd. (b)(1)). As to counts 1 through 5, it was alleged that Brummitt
suffered one prior conviction within the meaning of the ―Three Strikes‖ law (§§ 1170.12,
subds. (a)–(d), 667, subds. (b)–(i)). As to counts 3 through 5, it was further alleged that
Brummitt suffered one prior serious felony conviction (§ 667, subd. (a)(1)). As to count
6, it was further alleged that the offense resulted in physical injury. Brummitt pleaded
not guilty and denied the special allegations.
       The jury found Brummitt not guilty on count 2, found him guilty as charged on the
remaining counts, and found true the personal use of a deadly weapon allegation
appended to count 4. The trial court sentenced Brummitt to a total term of 12 years and
four months in state prison.
       At trial the evidence showed the following.
A.     April 8, 2011 Arrest
       On April 8, 2011, Nancy Pinagel called 911 from outside her home and reported
that her husband, Brummitt, had assaulted her earlier that day. Pinagel told the 911


       1   All further statutory references are to the Penal Code unless otherwise indicated.
                                               2
operator that Brummitt picked her up from work and pulled her hair while the car was in
a parking lot. When Pinagel tried to leave the car, Brummitt beat her on the head and
pulled her into the back seat. Pinagel informed the 911 operator that Brummitt
threatened to kill her if she left him.
       Los Angeles County Sheriff Deputies Teresa Steen and Donald Chavez arrived on
scene and spoke to Pinagel. Pinagel appeared distraught and shaken, and she was crying.
Pinagel informed the deputies that while she and Brummitt were parked at a McDonald‘s
drive-thru ―Brummitt[ ] became angry with her . . . because he believed she was cheating
on him with . . . black men. [¶] [Brummitt] . . . grabbed her by the back of her hair and
slapped her about five times across . . . [the] face. [¶] [Pinagel] opened . . . the
passenger . . . door [to escape]. [Brummitt] grabbed her and . . . pulled her back inside.‖
They drove home where Pinagel called 911.
       Pinagel‘s face appeared red and swollen. Deputy Steen asked Pinagel if she would
like a protective order, which Pinagel accepted.
       Deputies arrested Brummitt. After they notified him of his Miranda2 rights,
Brummitt began rambling incoherently about rape kits and Pinagel ―messing around with
different black men.‖ Pinagel said nothing when deputies asked her what Brummitt was
talking about other than that was his normal state. Pinagel bonded out Brummitt on
April 10, 2011 and took him home.
B.     April 13, 2011 Arrest
       At around 6:00 a.m. on April 13, 2011, Pinagel called a coworker, Cindi Geddes,
at the Palmdale Mental Health Clinic, where Pinagel worked as a psychiatrist. Pinagel
whispered to Geddes, ―‗I‘m in trouble‘‖ or ―‗I need help.‘‖ She then quickly reverted to
a normal tone and conversation. Geddes knew Brummitt was with Pinagel because she
could hear him in the background and he took the phone from Pinagel to speak to Geddes
several times.


       2   Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
                                               3
       Geddes was concerned. On April 7 or 8, 2011, Pinagel had told Geddes that
Brummitt had acted violently towards her and about Brummitt‘s arrest at McDonald‘s.
Geddes was further concerned when Brummitt told her Pinagel would not be coming into
work that day. Pinagel asked Geddes to get her patients‘ medical records from the
building, which Geddes knew to be illegal. Pinagel also asked Geddes for gas money.
Attempting to establish whether Pinagel was in trouble, Geddes asked if she should
contact Pinagel‘s first patient that day, ―Rod.‖ Pinagel said she should. ―Rod‖ was the
security officer at the hospital, Deputy Rodney Bell.
       Geddes notified Deputy Bell of her concerns. Brummitt was arrested in a parking
lot near the hospital. A video of deputies attempting to arrest Brummitt showed him
telling deputies that he worked for the FBI and a local law firm, saying he had recordings
of three sexual assaults against Pinagel, and asking for his medication. A red pillowcase
containing a hatchet, knives and two decorative bayonets was found in Brummitt‘s car.
       Pinagel was interviewed on camera in a patrol car at the scene of the arrest.
Pinagel told deputies that she bonded Brummitt out of jail and told him to leave the
house. The night of April 12, Brummitt woke her up around 11:30 p.m. He had his hand
on her neck and asked, ―‗What the hell is going on? What the hell is going on?‘‖ He
then said, ―‗You need to get your ass up and get dressed.‘‖ Pinagel got up and Brummitt
stabbed the bed five times with a bayonet. Brummitt made Pinagel lie on the floor, grab
the blade of the bayonet with both hands and place the tip in her nose. Brummitt then
applied slight pressure with his foot saying, ―‗You just don‘t know who the F I
am.‘ . . . ‗Don‘t F with me.‘‖
       Brummitt grabbed one of Pinagel‘s expired credit cards and drove around with
her. The card was declined at at least two gas stations. At each stop, Pinagel tried to
communicate with the gas station attendants with no success. Pinagel told deputies she
was afraid Brummitt would beat her. Brummitt told Pinagel that she wasn‘t going to
work the next day, because she needed to go to the hospital. Brummitt made Pinagel call
Geddes at 6:00 a.m. Pinagel said she requested the medical records hoping Geddes

                                             4
would understand something was wrong. Pinagel understood what Geddes meant when
Geddes said Pinagle‘s first patient was ―Rod.‖
       Brummitt and Pinagel went to the parking lot next to the hospital to wait for
Geddes and the money. Deputies pulled into the parking lot behind Brummitt and
Pinagel. Pinagel said she was in fear at that time that Brummitt would do something. At
one point while they were waiting in the parking lot, Brummitt told Pinagel someone was
going to die.
       After Brummitt‘s arrest Pinagel consented to a search of her house. Deputies
recovered a mattress with five to six puncture marks. Pinagel later identified the bayonet
she said Brummitt used to stab the mattress and made her place in her nose.
C.     Pinagel’s Recantation
       Pinagel recanted her claims against Brummitt at the preliminary hearing and trial.
Pinagel said she had been diagnosed with posttraumatic stress disorder (PTSD) from
sexual abuse as a child. Pinagel testified that under stress she has symptoms ―like clips
from a movie . . . running . . . fast forward . . . and [seemingly] real.‖ During these
episodes Pinagel confuses the past with the present.
       Pinagel testified that the stress triggering her symptoms resulted from two related
events. Pinagel and Brummitt had been having problems with their former landlords, the
Fahey family. Pinagel and Brummitt moved from the Faheys‘ property after Mr. Fahey
threatened them. The Faheys were demanding Pinagel pay $1,400 for the return of nude
photos Pinagel left behind, and for not trumping up charges against Brummitt.
       The second incident triggering Pinagel‘s PTSD symptoms was her rape on the
morning of the McDonald‘s incident. Pinagel was using an outdoor restroom next to the
hospital. A man entered, pushed her against the wall, sexually assaulted her and said,
―‗Get rid of your man or you both are dead in the desert. Got it doctor?‘‖ Pinagel had no
doubt the rape was connected with the Faheys. Pinagel did not report the rape.
       Pinagel testified the stress of these events and her PTSD symptoms caused her to
make the false reports against Brummitt on April 8, 2011.

                                              5
          Pinagel testified that on April 8, 2012 Brummitt did not assault her out of anger.
Brummitt and Pinagel were arguing. Brummitt pointed his finger in front of Pinagel‘s
face. Pinagel bit his finger. Brummitt pulled Pinagel‘s hair and slapped her across the
chin with his fingertips to free his finger. Pinagel tried to exit the car as it was moving.
Brummitt pulled her back in to prevent her from getting hurt.
          Pinagel testified that when she called 911, she was experiencing PTSD symptoms:
―things were kind of coming in and out and they were not happening in a linear fashion.‖
          Pinagel testified that on April 12, 2011, Brummitt woke her up at 9:30 p.m.
Pinagel told him to let her sleep for two hours. Brummitt woke Pinagel up 10 minutes
before 11:30 p.m. Pinagel was irritated. She asked Brummitt if they could go for a ride
to talk and have oral sex. As they were gathering things for the ride Pinagel grabbed the
bayonet and put it to her nose. Pinagel said she was ―totally overwhelmed.‖ Brummitt
told Pinagel not to do something stupid. Pinagel handed Brummitt the bayonet.
          Pinagel and Brummitt‘s pet rat, Lipstick, had a habit of getting into their mattress.
After Brummitt recovered the bayonet from Pinagel he thought he saw the bed move.
Brummitt began stabbing through the mattress to get the rat. While he was doing this he
was saying, ―you better not fuck with me,‖ referring to the Faheys. Pinagel did not fear
Brummitt would turn the bayonet on her.
          Pinagel and Brummitt took turns driving, talking and eating. Pinagel testified she
called Geddes to request $20 for gas. Pinagel said she made up the story of the
kidnapping to prevent embarrassing information from getting out that might harm her
career.
                                         DISCUSSION
I.        Brummitt’s Fifth Amendment right to remain silent was not violated by the
prosecutor’s comments.
          Brummitt claims that the prosecutor‘s comments in closing argument violated his
Fifth Amendment right to remain silent because he asked the jury to interpret Brummitt‘s
failure to make exculpatory statements as evidence of his guilt. Brummitt further argues

                                                6
that defense counsel‘s failure to object at trial to the prosecutor‘s statements was
ineffective assistance of counsel.
       During the prosecutor‘s summation, he referred to Brummitt‘s unprompted
statements that Pinagel needed rape kits and was sleeping with other men on April 8, and
similar statements made April 13, as not the normal behavior of a falsely accused man,
and elaborated on what he thought an innocent man would say. There was no defense
objection. The statements of April 8 were made after Brummitt was Mirandized. The
statements of April 13 were made before Brummitt was in custody.
       Brummitt failed to object at trial on the Fifth Amendment ground he now
advances and has forfeited it for this appeal. (People v. Avila (2009) 46 Cal.4th 680,
710–711.) In any event we disagree with Brummitt that the statements were improperly
commented upon, and therefore find there was no ineffective assistance of counsel.
       The United States Supreme Court in Griffin v. California (1965) 380 U.S. 609 [85
S.Ct. 1229, 14 L.Ed.2d 106] held that for a prosecutor to comment on a defendant‘s
refusal to testify ―cuts down on the privilege by making its assertion costly.‖ (Id. at
p. 614.) In Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) [96 S.Ct. 2240, 49 L.Ed.2d 91],
the Court held that the prosecution may not ask the jury to draw a direct inference from
defendant‘s silence in the face of questioning as being inconsistent with innocence. (Id.
at p. 635.) A defendant has the right to remain silent in the face of police interrogation.
(Miranda v. Arizona, supra, 384 U.S. at pp. 467–468.) Interrogation is ―any words or
actions on the part of police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminating response from
the suspect.‖ (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted [100 S.Ct.
1682, 64 L.Ed.2d 297].) However, ―[v]olunteered statements of any kind are not barred
by the Fifth Amendment.‖ (Miranda, at p. 478.)
       Deputy Chavez testified that on April 8, after Brummitt was arrested and given
Miranda warnings, Brummitt began rambling that Pinagel needed rape kits and was
―messing around with different black men.‖ Deputy Chavez asked Brummitt to elaborate

                                              7
on what he meant by rape. Brummitt did not respond in a coherent manner. Deputy
Chavez asked Pinagel what Brummitt was talking about. Pinagel said nothing other than
that was Brummitt's normal state.
       On April 13, as deputies were attempting to arrest him, Brummitt began (without
solicitation or prompting from the deputies) ―yelling incoherently.‖ Brummitt stated that
he was ―scared‖ and ―afraid.‖ Brummitt again referenced that his wife had been raped
and he had three recordings of sexual assaults on Pinagel. Brummitt also claimed that he
was working for the FBI and a local law firm. Throughout the arrest, deputies repeatedly
tried to calm Brummitt down, and told him to relax and shut up. The deputies did not
interrogate Brummitt or give him Miranda warnings while he was making these
comments.
       Brummitt‘s statements to deputies on April 8 and 13 were voluntary. The
deputies‘ actions were those normally attendant to arrest and custody. The statements
were not made in response to custodial interrogation, but were spontaneously volunteered
(and actively discouraged by the deputies), making them admissible. (People v. Roldan
(2005) 35 Cal.4th 646, 735, overruled on other grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
       Brummitt relies upon the Ninth Circuit‘s decision in Hurd v. Terhune (2010) 619
F.3d 1080, to support his claim that the prosecutor‘s comments were a Doyle violation.
Police arrested Hurd and gave him Miranda warnings. Hurd cooperated with police as
they investigated the shooting of his wife. Hurd claimed he accidently shot his wife
while showing her how to load a gun. When police asked Hurd to reenact the shooting
Hurd said, ―‗I don‘t want to do that,‘ ‗No,‘ ‗I cant,‘ and ‗I don‘t want to act it out because
that—it‘s not that clear.‘‖ (Hurd, at p. 1089.)
       At trial the prosecution commented multiple times in its case in chief and closing
argument on Hurd‘s refusal to reenact the shooting. The Ninth Circuit overturned Hurd‘s
conviction based on these comments. The court found that ―Hurd unambiguously
invoked his right to silence when officers requested that he reenact the shooting.‖ (Hurd

                                              8
v. Terhune, supra, 619 F.3d at p. 1088.) As such the prosecutor‘s comments were a
Doyle violation.
       Unlike the defendant in Hurd v. Terhune, supra, 619 F.3d 1080, in neither arrest
did Brummitt indicate that he did not want to speak to the deputies. While what he was
saying was incoherent, it was nonetheless unprompted and voluntary, and not in response
to interrogation by deputies.
       Griffin v. California, supra, 380 U.S. 609 ―does not extend to comments on the
state of the evidence or on the failure of the defense to introduce material evidence or to
call logical witnesses.‖ (People v. Brady (2010) 50 Cal.4th 547, 566.) The prosecutor‘s
statements were comments on Brummitt‘s spontaneous ramblings to police, comparing
them to exculpatory statements he could have made. The prosecution never commented
on Brummitt‘s silence or his lack of testimony.
       There are two components to ineffective assistance of counsel: ―counsel‘s
representation fell below objective standards of reasonableness; and . . . there is
reasonable probability that, but for counsel‘s unprofessional errors, a determination more
favorable to the defendant would have resulted.‖ (People v. Rodrigues (1994) 8 Cal.4th
1060, 1126.) As we conclude that there was no prosecutorial misconduct and there was
no error in admitting Brummitt‘s statements, Brummitt has failed to demonstrate that
defense counsel was ineffective in failing to object.
II.    The trial court did not abuse its discretion in denying a mistrial.
       Before jury selection, defense counsel and the prosecution agreed there would be
no mention of Brummitt‘s prior record. During trial, the prosecution played a recording
for the jury of Pinagel‘s 911 call where she briefly mentioned that Brummitt had a record.
Pinagel did not say that Brummitt‘s prior conviction was for sexual assault. No objection
was made at the time it was played. The prosecution brought the issue to the court‘s
attention outside the presence of the jury. Defense counsel moved for a mistrial.
       The court denied defense counsel‘s motion saying: ―I kept it out, out of an
abundance of caution. It still has some probative value. There is a charge of criminal

                                              9
threats on this. Certainly the victim knowing the defendant‘s past conduct is relevant as
to her state of mind and how seriously she took those threats.‖ Later in the trial defense
counsel requested a mistrial on the grounds that Brummitt‘s Fifth and Fourteenth
Amendment rights were violated. The trial judge denied the motion, again saying the
past crimes were relevant to the charge of criminal threats.
       Brummitt claims that the mention of his record was unduly prejudicial. ―Whether
a particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.‖ (People
v. Haskett (1982) 30 Cal.3d 841, 854.)
       On the tape Pinagel says Brummitt has ―a record.‖ Defense counsel did not object
and there is nothing in the trial record to indicate anyone other than the prosecutor
noticed. The line was redacted from the transcript given to the jury. The tape sent back
to the jury was redacted of Pinagel‘s statement, and the prosecutor was ordered not to
mention it in closing. The trial judge asked defense counsel if she would like a curative
instruction given to the jury. Defense counsel said she would rather not have the issue
readdressed.
       A ―fleeting reference‖ to a criminal record is not ―‗so outrageous or inherently
prejudicial that an admonition could not have cured it.‘‖ (People v. Valdez (2004) 32
Cal.4th 73, 123.) Here, defense counsel rejected the trial court‘s offer for an admonition
to the jury.
       Brummitt claims that admission of the statement was both irrelevant and unduly
prejudicial under California Evidence Code section 352. Only relevant evidence is
admissible. (Evid. Code, § 350.) Relevance is defined by statute as, ―having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.‖ (Evid. Code, § 210.) ―‗We review the trial court‘s ruling
on the admission of evidence for abuse of discretion.‘‖ (People v. Homick (2012) 55
Cal.4th 816, 859.)



                                              10
       Section 422 provides: ―Any person who willfully threatens to commit a crime
which will result in death or great bodily injury to another person, with the specific intent
that the statement . . . is to be taken as a threat, even if there is no intent of actually
carrying it out, which, on its face and under the circumstances in which it is made, is so
unequivocal, unconditional, immediate, and specific as to convey to the person threatened
a gravity of purpose and an immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or her own safety or for his
or her immediate family's safety, shall be punished by imprisonment in the county jail not
to exceed one year, or by imprisonment in the state prison.‖ (§ 422, subd. (a), italics
added.)
       The prosecution must establish (1) that the defendant had the specific intent that
his statement would be taken as a threat (whether or not he actually intended to carry out
the threat) and (2) that the victim was in a state of ―sustained fear.‖ The prosecution must
additionally show that the nature of the threat, both on ―its face and under the
circumstances in which it is made,‖ was such that the victim reasonably believed that the
threat would be immediately carried out.
       The fact that Pinagel knew Brummitt had a criminal record is relevant and
probative to establishing these elements. It tends to show Brummitt had specific intent to
threaten Pinagel when he held the bayonet up to her nose and said not to ―F‖ with him,
and later said someone was going to die. It also shows that Pinagel‘s fear that the threats
would be carried out immediately was reasonable.
       Brummitt claims the trial court failed to weigh the undue risk of prejudice to him
by admitting his record. The decision to admit a defendant‘s criminal past must be
―scrutinized with great care.‖ (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.)
―[T]he record must demonstrate affirmatively that the trial court did in fact weigh
prejudice against probative value.‖ (People v. Crittenden (1994) 9 Cal.4th 83, 135.) The
record indicates the trial court weighed the mention of Brummitt‘s record two different
times in response to defense counsel‘s motions for mistrial. Both times the trial court

                                               11
reasoned that Brummitt‘s record was probative to show Pinagel‘s state of mind and how
seriously she took those threats.
       Next Brummitt claims that the court‘s error was prejudicial under the federal
constitutional standard of Chapman v California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17
L.Ed.2d 705]: ―before a federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a reasonable doubt.‖ Chapman
does not apply here, as we find no constitutional error in the trial court‘s decision
regarding Brummitt‘s record. The court‘s reasoning in allowing mention of Brummitt‘s
record was a routine balancing between the elements of Penal Code section 422 and the
requirements of California Evidence Code section 352. ―‗―[T]he ‗routine application of
state evidentiary law does not implicate [a] defendant's constitutional rights.‘
[Citation.]‖‘‖ (People v Taylor (2010) 48 Cal.4th 574, 650.)
       Brummitt further contends that he was prejudiced by the investigating detective‘s
testimony that ―[p]rior to my contacting [Pinagel] I had looked up past calls for service
regarding her and her husband.‖ Brummitt argues this testimony falsely implied previous
domestic violence calls. Defense counsel did not object. The testimony was vague and
unresponsive to the question asked. The detective was merely explaining a step in his
investigation and never said whether or not there were prior calls. We see no abuse of
discretion in the trial court‘s denial of Brummitt‘s motions for mistrial.
III.   The trial court did not violate Brummitt’s right to a fair trial.
       Brummitt claims that the trial court erred in not enforcing its own order that the
Sheriff‘s Department allow Brummitt to shave before being presented to the jury.
Brummitt argues that this was a violation of his Fourteenth Amendment and California
Constitution, article I rights to a fair trial.
       The day before voir dire the trial court issued an order to the Los Angeles County
Sheriff‘s Department to allow the defendant to groom himself. The order was faxed the
same day. The next day defense counsel informed the trial court that the sheriff‘s
department had not complied with the order. Defense counsel requested that Brummitt

                                                  12
be allowed to groom himself before being presented to the jury. The court denied the
request: ―[H]e doesn‘t look unkempt. The facial hair is trimmed. It‘s short. It looks like
a regular beard.‖ Defense counsel did not object.
       Brummitt‘s facial hair raises no constitutional issues. The trial court noted the fact
that Brummitt did not appear unkempt. ―[T]he court‘s conclusion that there was ‗nothing
unkempt‘ about the defendant‘s appearance will not be disturbed absent convincing
evidence to the contrary.‖ (People v. Sanchez (1969) 275 Cal.App.2d 226, 232.) In
United States v. Anderson (9th Cir. 1977) 561 F.2d 1301, defendant ―was attired in non-
prison clothes. His hair was no longer than that of Government counsel and defense
counsel. And there was no request for a mistrial or a cautionary instruction on the
clothes, hair.‖ (Anderson, at p. 1303.) Under these circumstances the Ninth Circuit held
the defendant‘s constitutional claim had ―no merit.‖ (Ibid.)
       Brummitt points to a juror who had to be removed during the voir dire process as
evidence that his facial hair prejudiced him in front of the jury. At a sidebar the juror was
crying and raised concerns about running into Brummitt if he was released. The trial
judge dismissed the juror for cause. The juror did not say it was Brummitt‘s appearance
that caused her concern. At that point in the trial, Brummitt had already been
admonished twice outside the jury‘s presence, and the court had ordered extra deputies in
the courtroom, based on Brummitt‘s outbursts. Brummitt has presented no compelling
evidence that the failure to shave his facial hair violated his right to a fair trial.
IV.    The placement of two deputies in the courtroom did not deny Brummitt the
presumption of innocence.
       Brummitt next claims that the positioning of two extra deputies in the courtroom
denied him his presumption of innocence.
       During voir dire, the trial court ―noted some behavior that is of concern.‖ The trial
judge said, ―At one point I had my finger on the panic button because I thought
[Brummitt] was going to attack my bailiff.‖ The court gave Brummitt the option of
wearing a ―stealth belt‖ or having extra deputies positioned in the courtroom, one behind

                                               13
the defendant. Defense counsel objected to both and was overruled. Brummitt chose to
accept extra deputies.
       Decisions regarding security measures in the courtroom are reviewed for abuse of
discretion. (People v. Stevens (2009) 47 Cal.4th 625, 632.) ―[T]he stationing of a
courtroom deputy next to a testifying defendant is not an inherently prejudicial practice
that must be justified by a showing of manifest need.‖ (Id. at p. 629.) However, the
decision may not be deferred to law enforcement. The trial court must exercise its own
discretion and determine on a case-by-case basis whether such heightened security is
appropriate. (Id. at p. 642.)
       In this case, Brummitt never testified. A deputy was placed behind him as he sat
at the defense table. Contrary to the defendant in People v. Stevens, supra, 47 Cal.4th
625, who did testify, Brummitt did not testify with a deputy next to him on the witness
stand. The presence of a deputy in close proximity to Brummitt is therefore even less
inherently prejudicial.
       The trial judge had his own concerns for the security of the courtroom as
evidenced by the fact that he had his hand on the ―panic button‖ at one point. The trial
judge noticed a ―level of hostility‖ and agitation, and also noticed that Brummitt ―makes
gestures like putting a noose around his neck and pulling it taut in front of the jury.‖
While staff members indicated concerns to the judge for the courtroom‘s safety, the
record reflects that the decision was entirely the trial judge‘s, not law enforcement‘s.
V.     The trial court did not abuse its discretion in excluding Pinagel’s medical
records and bank statements.
       Brummitt claims the trial court‘s exclusion of Pinagel‘s medical billing records
and bank statements was unreasonable and violated his Sixth and Fourteenth Amendment
right to present a complete defense.
       Defense counsel sought to introduce medical billing records that showed Pinagel
was diagnosed with PTSD in 2001 to 2004. Brummitt also sought to introduce Pinagel‘s



                                             14
banking records with a withdrawal statement claiming they were to pay off the Faheys.
Brummitt contends both were necessary to support his defense.
       The trial court did not allow Brummitt to present Pinagel‘s medical billing
records. The court said the defense presented no evidence that PTSD is a continuing
condition that would persist for at least seven years, from Pinagel‘s 2001-2004 diagnosis
until April 8 or 13, 2011, the dates of the events in issue at trial.
       The court denied Brummitt‘s request that Pinagel‘s bank statements be admitted.
The trial judge agreed that some of what happened with the Faheys was relevant, but that
whether Pinagel paid extortion to the Faheys was ―a whole different trial at this point,‖
and irrelevant.
       Both records were hearsay. ―‗Hearsay evidence‘ is evidence of a statement that
was made other than by a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated.‖ (Evid. Code, § 1200, subd. (a).) ―Except as
provided by law, hearsay evidence is inadmissible.‖ (Evid. Code, § 1200, subd. (b).)
Brummitt advanced the medical billing records to prove Pinagel suffered from PTSD.
Her banking records were advanced to prove she paid the Faheys extortion.
       The medical billing records and bank statements are not part of the record on
appeal. Thus the record does not establish a foundation for introduction of records under
the business records exception to the hearsay rule. Evidence Code section 1271 provides
as follows: ―Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered to prove the act, condition, or event
if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing
was made at or near the time of the act, condition, or event; [¶] (c) The custodian or
other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d)
The sources of information and method and time of preparation were such as to indicate
its trustworthiness.‖ The record shows Brummitt did not attempt to meet these
requirements when he attempted to introduce the banking and medical billing records.



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        An appellate court applies the abuse of discretion standard of review to any trial
court ruling on Evidence Code section 352. (People v Jablonski (2006) 37 Cal.4th 774,
805.)
        Pinagel‘s medical billing records were properly excluded. Brummitt offered no
evidence that PTSD was a continuing condition other than defense counsel‘s bare
assurances that the ―DSM-4‖ indicated that PTSD ―doesn‘t go away‖ and Pinagel‘s
testimony that ―[y]ou don‘t get over‖ PTSD, and ―there is no cure.‖ The trial court said,
―I don‘t have any evidence before me that [PTSD] would continue on into 2011.‖
        In this instance the trial court did not abuse its discretion. Barring a substantial
showing that PTSD is an ongoing condition, Pinagel‘s medical billing records from 2004
have no bearing on her behavior in 2011. ―‗The inference which defendant sought to
have drawn from the [proffered evidence] is clearly speculative, and evidence which
produces only speculative inferences is irrelevant evidence.‘‖ (People v. Babbitt (1988)
45 Cal.3d 660, 682.)
        The same reasoning applies to Pinagel‘s bank records. Brummitt sought to
introduce records of a cash withdrawal of $2,500 from Pinagel‘s bank account. Brummitt
wanted to use these records as corroboration that the Faheys were extorting Pinagel for
$1,400. A generic statement of a cash withdrawal gives no indication what the money is
used for. The amount of the withdrawal was $1,100 more than Pinagel claimed the
Faheys were asking. To introduce the records would call on the jury to make a
speculative inference, and the evidence was therefore irrelevant.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED.
                                          JOHNSON, J.


We concur:


             MALLANO, P. J.


             CHANEY, J.




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