Filed 6/12/13 P. v. Vlahos-Schmidt CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133704
v.
GINGER VLAHOS-SCHMIDT,                                               (Alameda County
                                                                     Super. Ct. No. 166552)
         Defendant and Appellant.


                                                 INTRODUCTION
         Defendant, a petite-120-pound woman, stabbed her 220-pound-male roommate in
the back during an altercation in which he pummeled her in the face, bloodying her nose
and blackening her eyes. Defendant testified she stabbed her roommate in self-defense,
and the trial court allowed her to recount a number of prior violent incidents between
them, but prevented defendant from testifying that on one occasion her roommate threw
her down the stairs and on another occasion threatened to kill her. The jury was
instructed on antecedent threats, but convicted defendant of felony assault. On appeal,
defendant argues the trial court’s ruling violated her right to testify and constituted an
abuse of discretion. We agree the court erred, but after a review of the entire record,
conclude the error was harmless beyond a reasonable doubt. We will affirm.
                                        STATEMENT OF THE CASE
         An information alleged that on June 28, 2011 defendant Ginger Vlahos-Schmidt
assaulted Zenon Lopata with a deadly weapon (a knife) and inflicted great bodily injury



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on him. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).)1 A jury found defendant
guilty as charged. Defendant was sentenced to state prison for five years: the low term
of two years for the assault, and a consecutive three years for the great bodily injury
enhancement.
                                   STATEMENT OF FACTS
The Prosecution’s Case
        Lopata, defendant, and Alicia Brown shared a three-bedroom flat on the top floor
of an old Victorian on the corner of East 15th Street and 24th Avenue in Oakland. Each
roommate had his or her own bedroom and shared a common kitchen, living room, and
hallway.
        On February 20, 2011, Brown invited a group of musician friends to spend the
night in the common area of the apartment. Lopata was unhappy about that and phoned
the landlord from his room to complain. Defendant overheard the conversation and when
he opened the door to his room, she stabbed him in the bicep with a pocket knife. He
admitted pushing defendant, but denied slapping her in the face. The guests came to her
defense, “beat[ing him] up and jump[ing] in [his] face.” Lopata called 911 three times
and said his life had been threatened, but “nobody came.” Police dispatch evidence
corroborated Lopata’s calls.
        There was also a dispute that day over vodka. Defendant had been drinking
Lopata’s vodka the day before and had promised to replace it the next day. Lopata asked
defendant if she had replaced the vodka, and since she had not, Brown went out to get
more.
        For many weeks after that incident, there was no conversation or socializing
between the three roommates, but by June 28, defendant and Lopata had begun talking
again. Defendant had downloaded the television series “Weeds” on her laptop, and she
offered to watch it with him. They plugged the computer into the television in his




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

                                                2
bedroom and watched the show for an hour and a half or two hours. He was in his chair
eating and having “a few shots” while defendant sat on his bed drinking beer and vodka.
       For some reason Lopata could not remember, a dispute arose and defendant
punched him in the face. Defendant is a small woman, and he is 5 feet, 10 inches tall and
weighs 220 pounds. She did not hit him very hard, but it was hard enough that he wanted
the evening to be over. He pushed her out of his room and placed the laptop on the
counter in the kitchen. She was not injured and went to her room.
       About 10 or 15 minutes later, while he was hanging clothes in his room, he heard
running steps and felt a big jolt in his back on the left side. He forcefully pushed her
away from him and she fell to the ground against the heater and Alicia Brown’s door. It
is possible she could have been injured, but he did not see it because he was bleeding
profusely and was in great pain as he knocked on Brown’s door. He denied punching
defendant in the face.
       Defendant got up and ran away, yelling at Lopata that she was going to “call her
friends at Hells Angels to have them kill me.” At that point, he saw the knife in her hand.
Lopata could not find his cell phone and Brown refused to open her door, so Lopata
called 911 from the manager’s apartment downstairs. Evidence of the 911 call was
presented. This time, the police came right away and he was transported to Highland
Hospital by ambulance. Defendant was detained and disarmed of the knife outside the
gate to the apartment building. Her nose was injured, and she was distraught. Photos
taken of both defendant and Lopata at the scene were admitted into evidence.
       Lopata acknowledged that defendant had accused him of throwing her down the
stairs, tossing her out of a futon, and spanking her, but Lopata maintained, “that never
happened.” He denied telling defendant “your time is coming to an end, darling. You’re
going to get what’s coming to you.” He denied calling somebody on February 20 and
saying, “you’ve got to come over here; we’ve got to kill these bitches.” He did admit
throwing a slipper that defendant had left in his room down the hallway in her direction.




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The Defense Case
       Defendant testified in her own behalf. Significantly, she testified to prior assaults
and threats committed by Lopata. According to defendant, when she moved into the
apartment in October 2010, Brown and Lopata already lived there. At first, they all got
along well; she and Lopata cooked and ate together. Things began to change after a
month. Lopata would get pushy and mad if defendant declined to drink with him.
Lopata pretty much drank all day. He made mean, derogatory comments to defendant,
argued with everything she said and put her down.
       Once, in November or December 2010, for no apparent reason, Lopata overturned
a futon while defendant was reclining on it. Lopata then went into his room and stayed
there for the rest of the night. The next day Lopata apologized and acknowledged that his
actions were “uncalled for.”
       Another time, shortly before February 20, 2011, Lopata threw defendant onto the
futon and spanked her when she refused to drink with him. Defendant talked to Brown, a
few of her friends, and the landlord about this incident.
       On February 20, 2011, defendant asked Brown to go to the store to get more
vodka, because Lopata’s vodka was running low and defendant was afraid he would get
angry when he ran out of it. When Lopata ran out of vodka before Brown returned, he
yelled at defendant, grabbed her arms, and brought her towards him really hard. Because
she was afraid of defendant who was out of control, she had a pocket knife in her hands.
When Lopata would not let go of her, she brought the knife down onto his arm. “[T]hen
he let go” and pushed her away. Some musician friends of Brown were staying at the
apartment at the time of this incident.
       Defendant heard Lopata say several times that he was calling the police. She also
overheard Lopata say to someone on the phone: “You need to get over here now. We
need to kill a couple of these bitches over here. We have two bitches. We need to take
care of them.” She told Brown to call the police and then waited outside with her son for
the police to arrive for about 40 minutes. When no one came, defendant left with her son.



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She did not make a police report. After this incident, she asked the landlords to let her
out of her contract, but they refused to do so.
       Defendant was not on speaking terms with Lopata for many months after the
February 20 incident. At some point, Lopata started making small talk with her when her
son was visiting, and she was courteous to Lopata to keep the peace in front of her son.
       Lopata kept asking defendant if she would let him watch the last season of the
television series “Weeds” before the new season began, and on June 28 she agreed. She
set up the computer and sat down to watch it with him for a few minutes before leaving to
do something else, but he closed the door to his room after she sat down. She felt very
uncomfortable with the door closed, but she “just played it off,” talking to him for a few
minutes before making an excuse to exit. She left and entered the room several times to
“see where he was in the series, being courteous.”
       Right before the incident, defendant left to smoke a cigarette outside on the
balcony. It was raining, and she put on her jacket. In the jacket pocket was a knife she
had put there earlier in the day when she went to a store in a dangerous part of the
neighborhood to buy cigarettes. After smoking her cigarette for about five minutes, she
went back inside to check on Lopata again. “As soon as I turned the corner to his room,
he started punching me in the face[.]” Defendant was pinned against the door and could
not move while he was hitting her. Defendant was scared, shocked, and in pain. She
“didn’t know if he was going to stop.” She pulled the knife out of her jacket pocket,
“swung with it” just once with her right hand and connected. She was not aiming at any
part of his body and could not see what she was doing because she “was being pummeled
in the face.” When the knife connected with Lopata he stopped hitting defendant.
Defendant testified on cross-examination that she stabbed Lopata in self-defense. She
did not, however, call the police that night.
       Defendant ran as fast as she could out the door, slipped on a towel Lopata kept
outside his door, and hit the heater with her left shoulder and arm. She caught herself
before she fell down and continued running out the front door with the knife and sheath
in her hand. She got into her car and drove to a friend’s house for help. The friend did


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not respond to her honking and yelling outside his house. She drove back to her
apartment and parked the car in the secure parking area.
       She was detained by police when she walked into the front yard of the apartment
building. Defendant testified she had a broken nose, a lump on her forehead, a chipped
and loose tooth, and a swollen face. Her eyes turned black the next day. She was taken
by ambulance to the hospital. Defendant gave her statement to the police about what
Lopata had done to her. However, at the hospital, “the woman” who arrested defendant
said she did not write down defendant’s statement; she just wrote that defendant wanted
to wait until she spoke to an attorney.
       Alicia Brown testified that on the night of June 28, she arrived home from work
around 6:00 p.m. and heard defendant in Lopata’s room. It sounded friendly. She went
into her room and turned on her music. She did not see or hear the altercation.
       Nor did Brown see the altercation between defendant and Lopata on February 20.
However, she generally corroborated defendant’s version of the events leading up to that
altercation and its aftermath. In particular, she testified that while she and defendant
were waiting for the police to arrive, Lopata told somebody on the phone, “You need to
get over here. We need to kill these bitches.” Brown called 911 and left the apartment.
The police responded two hours later. Brown also testified that while she never saw
Lopata hit or hurt defendant, she was afraid of Lopata.
       Defendant’s former boyfriend testified as a character witness. In the eight or nine
years he had known defendant, he had never known her to be physically assaultive or
violent, even when she had too much to drink.
       One of the visiting musicians testified about the confrontation between defendant
and Lopata on February 20. Lopata became loud, rude and angry. Defendant was trying
to calm him down and Lopata was yelling at her. Lopata pushed defendant forcefully
into the wall. The visitor confronted Lopata about his behavior, but Lopata responded
that he could do whatever he wanted to defendant because it was his house. The visitor
did not see defendant stab Lopata in the arm.



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                                       DISCUSSION
       Defendant argues the trial court abused its discretion and violated her right to
testify under Rock v. Arkansas (1987) 483 U.S. 44 when it ruled she could not testify that
in November 2010 Lopata pushed her down the stairs and in March 2011 he threatened
her, saying: “Your time is coming to an end, darling. You are going to get what you
deserve.” The trial court gave two reasons for excluding the evidence. First, the trial
court indicated that provisions of state law on reciprocal discovery in criminal cases
required defendant to: a) disclose to the prosecutor prior to trial that she intended to
testify about the victim’s prior assaultive and threatening behavior towards her, and
(b) litigate the admissibility of such testimony prior to trial. Evidently, the evidence was
excluded as a sanction for the perceived discovery violation.
       Second, the trial court stated that allowing evidence of multiple prior incidents
would occasion an undue consumption of time. Therefore, the court ruled defendant
could testify about a slipper incident, a spanking incident, and a slapping incident, but not
about the stair-throwing or threat incidents. A defense request for reconsideration of this
ruling was denied for the additional reason that a threat in March was not relevant to the
June 28 offense, given that defendant “went into [Lopata’s ] room that day to . . . show
him the video [and] [i]t didn’t look like she was still scared of him.”
       The Attorney General does not attempt to defend the discovery sanction aspect of
the court’s ruling. Our own review of section 1054.3, which governs the defense’s
disclosure obligation to the prosecution, does not reveal any legal basis for the court’s
ruling. On the contrary, case law interprets section 1054.3 as “requir[ing] defense
counsel to disclose to the prosecution all relevant statements made by persons, other than
the defendant, whom the defense intends to call as witnesses at trial, including
unrecorded oral statements relayed to defense counsel in an oral report by a third party,
such as an investigator, and oral statements made by the person directly to defense
counsel.” (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 160, second italics
added.)



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       Nor does the court’s implicit Evidence Code section 352 ruling withstand analysis.
It is well settled that evidence of antecedent threats and assaults by the victim against the
defendant is admissible on the question whether the defendant acted reasonably in self-
defense. (People v. Moore (1954) 43 Cal.2d 517, 527–529; People v. Minifie (1996) 13
Cal.4th 1055, 1069.) The jury in this case was instructed on that principle and on its
corollary: “Someone who has been threatened or harmed by a person in the past is
justified in acting more quickly or taking greater self-defense measures against that
person.” (CALCRIM No. 3470.) Evidence of Lopata’s prior threats and acts of violence
towards defendant were admissible and relevant to defendant’s claim she acted in self-
defense. “Of course, the right to present relevant testimony is not without limitation.
The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in
the criminal trial process.’ [Citation & fn. omitted.] But restrictions of a defendant’s
right to testify may not be arbitrary or disproportionate to the purposes they are designed
to serve. In applying its evidentiary rules a State must evaluate whether the interests
served by a rule justify the limitation imposed on the defendant’s constitutional right to
testify.” (Rock v. Arkansas, supra, 483 U.S. at pp. 55–56.) In our view, the court’s
response to defendant’s proposed testimony that Lopata pushed her down the stairs and
later threatened her life was disproportionate to the purposes served by Evidence Code
section 352. In particular, the court abused its discretion when it prevented defendant
from testifying that Lopata threatened her life, particularly after it permitted Lopata to
deny he ever said, “[y]our time is coming to an end, darling. You are going to get what
you deserve.”
       Defendant maintains the error was prejudicial under Chapman v. California
(1967) 386 U.S. 18 (Chapman) and requires reversal, but after careful review of the
entire record, we do not agree. In fact, the court did allow the jury to consider a great
deal of evidence of Lopata’s prior violent behavior toward defendant which, if believed,
could have supported an acquittal based on self-defense. Moreover, the court correctly
instructed the jury on self-defense and antecedent threats, and evidence of one such threat
was admitted. In addition, defendant testified at length about the injuries she suffered at


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Lopata’s hands on June 28 and about the circumstances under which she stabbed Lopata
in the back. Photos of both parties’ injuries were admitted, as well as evidence of
Lopata’s 911 calls to police, and defendant’s failure to call the police. “Under Chapman,
the question is whether there is a reasonable doubt that the error contributed to the
verdict.” (People v. James (2000) 81 Cal.App.4th 1343, 1362.) Here, we are convinced
beyond a reasonable doubt the error did not contribute to the verdict because the excluded
evidence was “unimportant in relation to everything else the jury considered on the
question of the defendant’s guilt, as revealed in the record.” (Ibid., citing Yates v. Evatt
(1991) 500 U.S. 391, 403, italics added, disapproved on other grounds in Estelle v.
McGuire (1991) 502 U.S. 62, 72–73, fn. 4.)
                                       DISPOSITION
       The judgment is affirmed.




                                                  ______________________
                                                   Margulies, Acting P.J.


We concur:


______________________
 Dondero, J.

______________________
 Banke, J.




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