1 Filed 4/1/14 P. v. Knoefler CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sierra)

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THE PEOPLE, Plaintiff and Respondent,

v. KANE KENNETH KNOEFLER, Defendant and Appellant. C072549 (Super. Ct. No. CR02970X)

Two citizens and three police officers testified that defendant Kane Kenneth Knoefler, in a drunken rage, threatened them and fought strenuously to resist arrest. A jury convicted him of one count of making a cr iminal threat (Pen. Code, § 422) and three counts of resisting a peace officer (Pen. Code , § 69). On appeal, defendant contends the trial court abused its discretion during its revi ew of sealed transcripts of the officers’ personnel files pursuant to his Pitchess motion 1 and by refusing to play an audiotape,

1 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ); Evid. Code, §§ 1043- 1045.2 recorded by one of the arresting officers, that had not be en transcribed. Finding no abuse of discretion, we affirm. FACTS Neither the citizens whom defendant verb ally abused nor the police officers he threatened wanted the night of July 22, 2012, to end as it did. Standing on the street inebriated, defendant shouted obscenities and tried to pro voke two construction workers who had rented an apartment near the bar de fendant frequented. In stead, they attempted to diffuse his anger and invited him up for a drink and some food. They were not the only targets of his wrath. An owner of a local restaurant had just begun to relax after wo rk when she heard a lot of noise and went out onto her balcony. Defendant star ted shouting profanities at her as well. She asked him to stop. While she wa s calling the police, he took his penis in his hand and told her she needed it. When as ked by the dispatcher if defendant had any weapons, she asked if defendant’s penis would count. She testified she was so terrified she vomited. The police, who arrived in uniforms and ma rked cars, did not seek to arrest anyone but simply asked defenda nt and his friends to disperse because neighbors had complained about the noise. Defendant, shirtless, was demonstrably agitated. According to the officers, he was “hopping around on the balls of his feet like a boxer,” spewing threats and obscenities. He warned, “ I’m a trained cage fighter. I’ll fuck you up.” He told Deputy Nathan Rust he was a “fat fucker” and Deputy Nico le Pastore he was going to “fuck you in all your holes.” At this poi nt, defendant remained on a balcony while the officers interviewed the construction workers on th e street and attempted to restore order. The construction workers gave them pe rmission to enter their apartment. Deputy Pastore, a former New York police officer and firefighter, testified that she remained on the street level because she coul d see bottles of hard alcohol and beer, which she feared could be thrown at her; she knew there was at least one weapon in the3 apartment; and defendant’s behavior was out of control. He continued yelling at the officers, stating, “[C]ome up y ou fucking pigs. Fucking cops . . . I’ll fuck you both. I will fuck you both up. I’ll fu ck you. I just got out of the pen. And I shot someone before. I shot pigs before, and I can do it again.” Deputy Pastore was afraid. She believe d defendant intended to carry out his threats. Not knowing how ma ny people or how many weapon s were in the apartment, she called for backup. Two additional officers responded. With the additional support, the police o fficers ascended the stairway. Defendant attempted to jump over the raili ng of the stairs but fell back wards off the railing into the stairwell. He ran back into the apartment. The officers went into the apartment and Deputy Rust ordered defendant to lie on the ground. Deputy Pastore placed handcuffs on him and tried to double-lock them to prevent the handcuffs from tightening and in juring defendant. Defendant, however, resisted and Pastore could neither search him nor double-lock the hand cuffs. The officers lifted him off the floor and tried to get him to walk out of the apartmen t. As they reached the top of the stairs, defendant attempted to trip Deputy Pastore by wrapping his leg around hers. Another officer, observing defendant’s attempt to trip Pastore, shoved the entire group into the wall to keep them from falling down the stairs. As defendant continued to struggle, the officers had to carry him down the stairs and tried to put him into the patrol vehicle. He refused, stating, “I’m not going to jail. I’m not getting in the car.” He pushed off the si de of the patrol car with his legs, at which point Deputy Rust warned him that if he did not comply he would be Tased. When defendant continued to resist, Deputy Rust Ta sed his calf and was then able to get him into the car. Yet when they arrived at the station, defendant once again refused to cooperate. He would not leave the patrol car, stating, “[T]his is my home now.” Deputy Boyd had4 to put him in a chokehold and obtain the assistance of another officer to get defendant out of the car and into the jail. DISCUSSION I Deputy Pastore made an audi o recording of a part of the incident. Just before the last witness testified at trial, defendant mo ved to admit the record ing into evidence to demonstrate that he did not threaten the offi cers. The court denied the motion following the witness’s testimony because the recording had not been transcribed, it was of poor quality, and it would confuse the ju ry in the absence of a transc ript. On appeal, defendant changes his theory of admissib ility, asserting for the first time that the tape demonstrates his remarks preceding his arrest di d not frighten Deputy Pastore. The trial court is vested with broad di scretion in ruling on the admissibility of relevant evidence. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 ( Rodrigues ).) We agree with defendant that the tape, whether admitted to demonstrate defendant did not make the threats or that the threats di d not frighten Deputy Pastore, was certainly relevant. We disagree, however, that the tria l court abused its discretion. Moreover, any possible error in excluding the tape was harmless beyond a reasonable doubt. The court can exclude relevant evidence that may unduly confuse the jury. ( Rodrigues , supra , 8 Cal.4th at pp. 1124-1125.) In th is case, defendant failed to have the tape transcribed to assist the jury in understanding what was being said on the tape. By all accounts, the tape was of very poor quality . Thus, we cannot say the court abused its discretion by refusing to admit a recording that most certainly would have confused some, if not all, of the jurors. But more importantly, the tape was of mi nuscule, if any, significance. Defendant argues that the tape would have impeached Deputy Pastore’s testim ony that his threats frightened her. But Deputy Pastore was just one of at least five witnesses who described the content of the threats as well as the menacing manner in which defendant peppered5 his threats with an almost endless stream of obscenities. One neig hbor, accustomed to boisterous behavior by bar patrons, called th e police because defendant’s antics were so unnerving. She testified she wa s so traumatized she vomited. One of the construction workers corrobor ated her testimony. He too described how defendant tried to instigate trouble. He testified, “[Defendant] just kind of, just called me like a white piece of trash, get your ass down here SAP, and pacing back and forth with clenched fists, looking for troubl e.” He later explained that defendant was ready to start a fight; he was “[j]ust looking at me like, with a flared punch, [you] know, his punch, like with the intent to punch me.” This worker specifically described defenda nt’s verbal assaults of the officers, particularly Deputy Pastore, th is way: “It was just constant , constant, constant. [A]nd to her, the female officer, he says: I fuck you. I fuck you in a ll your holes. I will fuck you, you know, anything he could say. Those were actually words to her, but it continued, sexual conduct with her. And then fat and chu bby and all of the other stuff with the other guy [police officer].” Deputy Pastore and the other two officers re iterated the same acco unts to the jury. Every witness confirmed that defendant had hurled threats at the officers and was belligerent in both tone and manner. Yet de fendant insists that Deputy Pastore’s calm voice on the tape undercuts her testimony that she was afraid. We disagree. As the Attorney General points out, Deputy Pastore did not start recording her encounter with defendant until after the reinforcements had a rrived. Just because she might have been able to regain her composure once she receiv ed adequate support does not mean she had not been afraid at the time the threats were made. As a trained police officer, moreover, she might have been able to project a calm and commanding tone in her voice at odds with her internal emotional state of fear. We conclude the court’s exclusion of the tape was harmless under any standard because the eviden ce that defendant threatened Deput y Pastore is overwhelming. We6 also reject any suggestion that defendant’s counsel provided inadequate representation. In the absence of prejudice, defendant has fa iled to meet his burden of demonstrating he was denied his constitutional right to the effective assistance of counsel. ( Strickland v. Washington (1984) 466 U.S. 66 8 [80 L.Ed.2d 674].) II. Defendant’s Pitchess motion sought to discover th e personnel records of Officers Boyd, Rust, and Pastore necessary “to prov e the tendency of the officers to harass citizens, make material fabrications, and con duct unlawful detentions, searches, seizures, and arrests.” The trial court ordered the Sie rra County Sheriff’s Offi ce to provide it with the personnel records as requested. Following an in camera review of the records, the trial court found one discoverable item and di sclosed a citizen comp laint lodged against one of the officers on March 13, 2012, for excessive force. De fendant requests this court to review the personnel record s examined by the trial court to determine whether the trial court abused its discretion by refusing to disclose any othe r documents in the officers’ files. The Attorney General concur s in the propriety of the request. We have conducted an independent review of the three officers’ personnel records and conclude the trial court did not err oneously withhold any documents. (See People v. Fuiava (2012) 53 Cal.4th 622, 646 -648.) Defendant has failed to demonstrate an abuse of discretion. DISPOSITION The judgment is affirmed. RAYE , P. J. We concur:

ROBIE , J.

MURRAY , J.