1 Filed 6/12/13 P. v. Vlahos-Schmidt CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

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

INTRODUCTION Defendant, a petite-120-pound woman, st abbed 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. Defe ndant 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 occasi on threatened to kill her. The jury was
instructed on anteceden t threats, but convicted defendant of felony assault. On appeal, defendant argues the trial court’s ruling violat ed her right to testify and constituted an abuse of discretion. We agree the court erre d, 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 injury2 on him. (Pen. Code, §§ 245, su bd. (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 consecu tive three years for the great bodily injury
enhancement.
STATEMENT OF FACTS
The Prosecution’s Case Lopata, defendant, and Alicia Brown shar ed 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 ow n bedroom and shared a comm on 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 th e apartment. Lopata was un happy about that and phoned the landlord from his room to complain. De fendant 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 de fendant, but denied slapping her in the face. The guests came to her defense, “beat[ing him] up and jump[ing] in [h is] face.” Lopata called 911 three times
and said his life had been th reatened, 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 televi sion series “Weeds” on her laptop, and she offered to watch it with him. They plugge d the computer into the television in his

1 Unless otherwise indicated, all further stat utory references are to the Penal Code.3 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 defendan t sat on his bed drinki ng beer and vodka. For some reason Lopata could not re member, a dispute arose and defendant punched him in the face. Defendant is a small woman, and he is 5 fe et, 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 agains t the heater and Alicia Brown’s door. It is possible she could have been injured, bu t he did not see it because he was bleeding profusely and was in great pa in as he knocked on Brown’s door. He denied punching
defendant in the face. Defendant got up and ran aw ay, 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 Brow n refused to open he r door, so Lopata called 911 from the manager’s apartment dow nstairs. Evidence of the 911 call was presented. This time, the police came right away and he was tr ansported to Highland Hospital by ambulance. Defendant was detain ed and disarmed of the knife outside the gate to the apartment building. Her nose wa s 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 span king 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 th ese bitches.” He did admit throwing a slipper that defendant had left in his room down the hallway in her direction.4 The Defense Case
Defendant testified in her own behalf. Si gnificantly, 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 al ready lived there. At first, they all got along well; she and Lopata cooked and ate t ogether. Things bega n to change after a month. Lopata would get pus hy and mad if defendant dec lined to drink with him. Lopata pretty much drank all day. He ma de mean, derogatory comments to defendant, argued with everything she said and put her down. Once, in November or D ecember 2010, for no apparent reason, Lopata overturned
a futon while defendant was rec lining on it. Lopata then went into his room and stayed there for the rest of the night. The next da y 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 dri nk with him. Defendant talked to Brown, a few of her friends, and the la ndlord about this incident. On February 20, 2011, de fendant 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 bro ught 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 brou ght the knife down ont o 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 th at 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 b itches over here. We have two bitches. We need to take care of them.” She told Brown to call the po lice 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.5 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 w ith Lopata for many months after the February 20 incident. At some point, Lopata started making small ta lk with her when her son was visiting, and she was courteous to Lopa ta to keep the peace in front of her son. Lopata kept asking defendant if she wo uld let him watch the last season of the
television series “Weeds” before the new se ason began, and on June 28 she agreed. She set up the computer and sat down to watch it w ith 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 cl osed, but she “just played it o ff,” talking to him for a few minutes before making an excuse to exit. Sh e left and entered the room several times to “see where he was in the series, being courteous.” Right before the incident, defendant le ft 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 da y when she went to a store in a dangerous part of the neighborhood to buy cigarettes. After smoki ng 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[.]” De fendant was pinned against the door and could not move while he was hitting her. Defendant was scared, s hocked, 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 ha nd 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 w ith Lopata he stoppe d 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 he r 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 he r car and drove to a friend’s house for help. The friend did6 not respond to her honking and yelling outs ide 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 in to 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 ga ve her statement to the police about what Lopata had done to her. Howe ver, at the hospital, “the woman” who arrested defendant
said she did not write down defendant’s stat ement; 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 defe ndant 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 betwee n 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 ph one, “You need to get over here. We need to k ill 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 kn own 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. L opata 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 Lopa ta about his behavior, but Lopata responded
that he could do whatever he wanted to de fendant because it was his house. The visitor did not see defendant stab Lopata in the arm.7 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 ru led 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 fo r 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 pros ecutor prior to trial that she intended to testify about the victim’s prior assaultive and threatening behavi or towards her, and (b) litigate the admissibility of such testimony prior to tria l. Evidently, the evidence was excluded as a sanction for the pe rceived discovery violation. Second, the trial court stated that allo wing evidence of multiple prior incidents
would occasion an undue consum ption of time. Therefore, the court ruled defendant could testify about a slipper incident, a spanki ng incident, and a slapping incident, but not about the stair-throwing or threat incidents. A defense request for re consideration of this ruling was denied for the additio nal reason that a threat in March was not relevant to the June 28 offense, given that defendant “went in to [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 s ection 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, cas e law interprets section 10 54.3 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 re port by a third party, such as an investigator, and oral statemen ts made by the person directly to defense counsel.” ( Roland v. Superior Court (2004) 124 Cal.App.4th 154, 160, second italics added.)8 Nor does the court’s implicit Evidence Code section 352 ruling withstand analysis.
It is well settled that evidence of antecedent threats and assa ults by the victim against the
defendant is admissible on th e question whether the defendant acted reasonably in selfdefense. ( 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 gr eater self-defense measures against that person.” (CALCRIM No. 3470.) Evidence of L opata’s prior threats and acts of violence
towards defendant were admissible and relevantto defendant’s claim she acted in selfdefense. “Of course, the right to present re levant 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 re strictions of a defendant’s right to testify may not be arbitrary or disp roportionate 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 th e limitation imposed on the defenda nt’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 propos ed testimony that Lopata pushe d her down the stairs and
later threatened her life was di sproportionate to the purpos es served by Evidence Code section 352. In particular, the court abus ed its discretion when it prevented defendant from testifying that Lopata thr eatened her life, particularly after it permitted Lopata to deny he ever said, “[y]our time is coming to an end, da rling. 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 af ter 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 be havior toward defendant which, if believed, could have suppor ted an acquittal based on self-defen se. Moreover, the court correctly instructed the jury on self-defense and an tecedent threats, and evid ence of one such threat was admitted. In addition, de fendant testified at length abou t the injuries she suffered at9 Lopata’s hands on June 28 and about the circumstances under which she stabbed Lopata in the back. Photos of both parties’ inju ries were admitted, as well as evidence of Lopata’s 911 calls to police, and defend ant’s failure to call the police. “Under Chapman
, the question is whether there is a reasonabl e doubt that the erro r 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 cont ribute to the verdict because the excluded evidence was “unimporta nt in relation to everything else the jury cons idered 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.