Filed 1/15/14 P. v. Canister CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B242130

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA390140)
         v.

ELIJAH CANISTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Clifford L. Klein, Judge. Affirmed.

         William Hassler, 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, Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.




                                       __________________________
       Defendant and appellant Elijah Canister appeals from his conviction of battery and
assault with a deadly weapon, following a jury trial at which he represented himself.1
His sole contention on appeal is that the trial court prejudicially erred in allowing the
prosecution to reopen its case-in-chief without a showing of good cause. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     The People’s Case

       Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that in July 2011, Sherine Brown
lived in a one bedroom apartment with her daughter, Waynesha Brown, and Waynesha’s
children.2 Sherine used the living room as her bedroom and Waynesha slept in the
bedroom. Defendant, the father of Waynesha’s children, occasionally stayed overnight at
the apartment. At the time, Sherine was dating both Anthony Braux and victim Allen
Fox. Fox testified that Braux did not object to Fox’s relationship with Sherine, but there
was other evidence of friction between the two men. There was also evidence of friction
between Fox on the one hand, and Sherine and defendant on the other hand, relating to
Fox flirting with Waynesha. Fox testified that he spent the night of July 21 at Sherine’s


1      Defendant was charged by amended information with mayhem, criminal threats
and assault with a deadly weapon; in addition to two prior prison term enhancements, a
personal infliction of great bodily injury enhancement was alleged on the assault charge.
The trial court denied the prosecution’s motion to add an aggravated mayhem charge. A
jury found defendant not guilty of mayhem, but guilty of the lesser included offense of
battery causing serious injury; not guilty of criminal threats; and guilty of assault with a
deadly weapon; it found true the great bodily injury enhancement. In a bifurcated
proceeding, the trial court found true the prior prison term enhancement. Defendant was
sentenced to a total of 9 years in prison, comprised of the 4-year high term for assault
with a deadly weapon, plus a consecutive 3 years for the great bodily injury
enhancement, plus a consecutive 2 years for the prior prison term enhancement; the high
term of 4 years was imposed on the battery conviction, but stayed pursuant to Penal Code
section 654. (All future undesignated statutory references are to the Penal Code.)

2      To avoid confusion, we refer to mother and daughter by their first names.

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apartment, as did defendant.3 Before falling asleep in the early morning hours of July 22,
Fox wondered why defendant and Waynesha were sleeping on the floor in Sherine’s
room, rather than in Waynesha’s own room. The next morning, Fox was awakened by
someone pouring boiling hot liquid on his head and upper body. In addition to burn
scars, the hot liquid destroyed his left eardrum and injured his left eye. Between the
excruciating pain and the injuries to his ear and eye, Fox could at first see only shadows
and could not hear. Although he did not see the perpetrator, Fox was sure it was
defendant. By the time a neighbor, Anne, called 911, Fox knew that Sherine was with
him and he could hear Anne speaking to the 911 dispatcher; Fox identified Sherine’s and
Anne’s voices on the recording of the 911 call, which was played for the jury. Fox was
transported by ambulance to a hospital where he was treated for burns to his head, face
and arm.
       After he was released from the hospital that same day, Fox received a telephone
call from defendant, who said, “You’ll never touch her again, will you?” Either later that
day or the next day (July 23), Fox went to Sherine’s apartment to retrieve his bike. While
Fox waited on the sidewalk for someone to bring the bike, defendant came onto the porch
and said he was keeping Fox’s bike because Fox owed him money. Defendant threatened
to kill Fox if he ever came back. Fox reported defendant’s threats to the police later that
night. At the time, Fox only knew defendant by his moniker, “P.K.,” but was able to
identify defendant from a photograph shown to him by police. Fox told Los Angeles
Police Officer Antonio Villegas that defendant had poured hot water on him, but did not
tell Villegas he saw defendant do it because he had been asleep at the time.




3       During jury selection on Friday, February 10, 2012, the prosecutor informed the
trial court that Fox, who was semi-transient, could not be located. Following an
Evidence Code section 402 hearing, the trial court found the People had used due
diligence to locate Fox, and allowed Fox’s preliminary hearing testimony to be read into
evidence. Fox was later located and testified without any objection on the grounds that
his preliminary hearing testimony had already been introduced. (See e.g. Evid. Code,
§ 352.)

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       When Los Angeles Police Officer Carlo Zaragoza arrived at Sherine’s apartment,
Fox was already in an ambulance being treated for his injuries. Waynesha told Zaragoza
that defendant was jealous that Fox had given Waynesha a massage a few days before.
That morning, Waynesha saw defendant preparing water to make noodle soup but instead
of making the soup, defendant threw the water at Fox, and then ran out of the apartment.
       Waynesha testified that defendant did not sleep at Sherine’s apartment the night of
July 21. Waynesha was asleep on the floor in Sherine’s room when Fox was injured and
did not see the attack occur. When she woke up, the ambulance was already there and
the only people in the house were Sherine and Anne (the neighbor who called 911), and
possibly Braux. Waynesha did not speak to a police officer at the scene. She did not tell
him she saw defendant throw boiling water at Fox, Fox try to jump out a window, or
defendant run away. Waynesha said she never told Fox that defendant was his assailant.
       Sherine told Zaragoza that before Fox was injured, she saw defendant boiling
water for noodle soup. A few minutes later, Sherine heard Fox screaming and then saw
defendant run out of the apartment. Sherine said that after he was injured, Fox tried to
jump out of a window.4 Zaragoza noticed that one of the apartment windows was broken
and he deduced that a laceration on Fox’s back was caused by broken glass from that
window. At the hospital, Fox told Zaragoza that after he was awakened by the burning
on his face, he tried to run through a window. Because he was asleep, Fox did not see the
attack occur; he did not have any arguments with anyone, although Sherine had accused
Fox of “lusting” after Waynesha. At trial Waynesha and Sherine testified differently than
the accounts of their interviews that Officer Zaragoza provided.




4      Sherine testified that she was not home when Fox was injured; she did not tell a
police officer at the scene that she saw defendant pour boiling hot water on Fox, heard
Fox screaming in pain or saw defendant run out of the apartment. Sherine denied that her
voice was on the tape of the 911 call. During his testimony, defendant identified one of
the voices on the tape as Sherine’s.

                                             4
B.      The Defense Case

        Defendant testified that he was at Sherine’s apartment the evening of July 21, but
left at about 10:00 p.m. after getting into an argument with Waynesha. Defendant went
with a friend to a bar and then with another friend, Princess, to her place, where he spent
the night. He spent the next day, July 22, with Princess and some of her friends. At
about 7:00 p.m. on July 22, defendant returned to Sherine’s apartment where he relaxed
with Waynesha, Sherine and Braux. After Waynesha and Sherine left to pick up some
food, defendant took a nap. He woke up to police officers surrounding him and was
arrested. Defendant denied pour boiling hot water on Fox; he was not present when Fox
was injured or when Fox returned to pick up his bike; he did not threaten Fox; he had no
ill feelings towards Fox and knew nothing about Fox giving Waynesha a massage.
Defendant did not recall calling Fox and saying, “You will never touch her again, will
you?”
        Waynesha testified that she slept on the floor in Sherine’s room that night because
the apartment windows were broken and she was afraid to be alone. Early the next
morning, Waynesha was awakened by the sound of the back door opening; she saw
Sherine in the kitchen boiling water for laundry and going in and out of the back door
with things to hang on the clothes line. Waynesha fell back asleep until screaming
coming from the bedroom woke her up. She saw “Keyroy,” whom Waynesha knew as a
gang member, run out of the bedroom and out the back door. Waynesha and Sherine
helped the injured Fox to Anne’s apartment; the police were called from there. Neither
Waynesha nor Sherine ever talked to the police about what happened. Waynesha falsely
told defendant’s former defense attorney that she did not know anything about what
happened (i.e. about Keyroy) because she did not want to get involved. Keyroy
threatened to kill Sherine if they ever implicated him in the attack on Fox.
        When defense investigator John Moore interviewed Waynesha about the incident,
she told him that Keyroy was at Sherine’s apartment on July 21; Waynesha saw Keyroy
come in through the back door while Sherine was in the kitchen boiling water for


                                             5
laundry. Waynesha did not say she saw Keyroy run out of the apartment. Moore did not
clarify whether Waynesha said she saw Keyroy enter the apartment and saw Sherine
boiling water the night of July 21 or the morning of July 22. Waynesha told Moore she
was asleep and did not see the attack on Fox, but she saw Fox jump up and run into the
window.

                                       DISCUSSION

       Defendant’s sole contention on appeal is that the trial court abused its discretion in
allowing the prosecution, after it had “rested,” to introduce testimony by Sherine,
Waynesha, Zaragoza and Fox, without a showing of good cause for the prosecution to
reopen its case-in-chief, as required by Penal Code sections 1093 and 1094. Defendant
argues that inasmuch as the prosecution made no motion to reopen, it necessarily did not
make the requisite showing of good cause. We find no error.
       Section 1093, subdivision (c) prescribes the order of proof at trial. First, the
prosecution offers evidence in support of the charge. Second, the defendant offers
evidence in support of the defense. “The parties may then respectively offer rebutting
testimony, only, unless the court, for good reason, in furtherance of justice, permit them
to offer evidence upon their original case.” (§ 1093, subd. (d).) “[F]or good reasons, and
in the sound discretion of the court, the order prescribed in Section 1093 may be departed
from.” (§ 1094.) In People v. Katz (1962) 207 Cal.App.2d 739, 750, the court explained
that after the defense has introduced its evidence, the prosecution is limited to introducing
only rebuttal evidence, unless the prosecution shows good cause for reopening its case-
in-chief. Thus, it is the fact that the prosecution has finished putting on its case-in-chief
and the defense has begun introducing its evidence that triggers application of the Penal
Code section 1093, subdivision (c) limitation on the prosecution’s introduction of new (as
opposed to rebuttal) evidence. As we shall explain, the section 1093, subdivision (c)
limitation on introduction of new evidence in the prosecution’s case-in-chief was not
triggered when, during Villegas’s testimony, the prosecutor indicated Villegas would be
his last witness.

                                              6
       When the trial started, witnesses Sherine and Waynesha had not been located.
Defendant had requested a body attachment for Waynesha. On Wednesday, February 15,
while Villegas (the officer who took Fox’s police report on July 23) was still testifying,
the trial court asked whether Villegas would be the People’s last witness. Following the
prosecutor’s affirmative response, the trial court told the jury, “We’re going to adjourn
for the day. The People probably are resting subject to this little discussion we have to
have. . . . [¶] . . . The People have rested and we’ll see about the defense witnesses. So
we will finish this week. . . . I don’t know what’s going to happen tomorrow.” (Italics
added.) Outside the presence of the jury, following a discussion of some evidentiary
issues, the trial court told defendant that after Villegas was done, defendant would have
to start putting on his witnesses.
       But by the next day (February 16), the defense investigator had found Sherine and
Waynesha, and brought them to court. At the prosecutor’s request, the trial court ordered
them to remain as witnesses for the People. When Villegas finished testifying later that
day, there ensued the following colloquy:
       “THE COURT: . . . Call your next witness. [¶] [THE PROSECUTOR]: Yes.
       We would call A – [¶] [THE DEFENDANT]: I thought he rested. [¶] THE
       COURT: No, he didn’t. [¶] [THE DEFENDANT]: He did rest yesterday. I
       remember, he rested. [¶] THE COURT: Thank you, Mr. Canister. [¶] [THE
       DEFENDANT]: I know what resting is. [¶] THE COURT: He’s going to have a
       few more witnesses. [¶] Let’s move on. [¶] [THE DEFENDANT]: I would like
       an offer of proof of any witnesses that he agrees to call. [¶] THE COURT: Be
       quiet. Call your next witness.”

The prosecution called Sherine as its next witness. It then called Fox, who evidently had
also been located in the interim.5 The next day (February 17), the prosecution re-called
Zaragoza, then called Waynesha, and then re-called Zaragoza again, before announcing
that the People had no additional witnesses.


5      Defendant did not object to Fox’s live testimony on the grounds that his
preliminary hearing testimony had already been read into the record, and does not argue
the issue on appeal.


                                               7
       Thus, the record is clear that the prosecution had not finished questioning Villegas
when the prosecutor indicated, on February 15, that Villegas would be the People’s last
witness.6 Accordingly, notwithstanding the trial court’s statements to the jury and to
defendant, the prosecution had not “rested” its case-in-chief since it’s witness, Villegas,
was still testifying and defendant had not begun putting on his case. Thus, when Sherine,
Waynesha and Fox unexpectedly appeared in court the next day, the prosecution had the
right to introduce their testimony in its ongoing case-in-chief pursuant to section 1093,
subdivision (b). Section 1093, subdivision (c), requiring the trial court to find good cause
to allow the prosecution to introduce additional evidence, had not been triggered because
defendant had not begun putting on his own case. There was nothing to reopen, and the
trial court was under no duty to exercise section 1093 discretion.

                                      DISPOSITION

       The judgment is affirmed.




                                                  RUBIN, ACTING P. J.
WE CONCUR:




              FLIER, J.                                                GRIMES, J.



6      In his Reply Brief, defendant argues that, because the prosecutor had already
completed direct and redirect examination of Villegas, the prosecution’s case-in-chief
was not ongoing when the prosecutor indicated Villegas would be his last witness.
Defendant is incorrect. The facts are that defendant was in the process of cross-
examining Villegas when court recessed on February 15. The prosecutor redirected
additional questions to Villegas on February 16, followed by more cross-examination by
defendant. But even if the prosecutor had elected not to ask additional questions on
February 16, the fact that defendant’s cross-examination of the witness was still on-going
meant that the prosecution’s case-in-chief was, too.

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