1 Filed 10/3/13 P. v. Schauman CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

THE PEOPLE, Plaintiff and Respondent,

v. LENNART CHRISTIAN SCHAUMAN, Defendant and Appellant. C070009 (Super. Ct. No. 11F2854)

Defendant Lennart Christian Scha uman was charged with involuntary manslaughter and battery with serious bodily injury after he punched the victim, Adam Martinez, in a nightclub, causing Martinez to fall and strike his head on the floor. Martinez died approximately two and one-half we eks later. The jury was unable to reach a verdict on the manslaughter charge, but fo und defendant guilty of battery. The trial court sentenced defendant to the midterm of three years. Defendant makes two arguments on appeal. The first claim is that the trial court erred in failing to grant his request for change of venue. We shall conclude he has
forfeited this claim for failure to ra ise it following jury selection.2 His second claim is that there was insu fficient evidence for the trial court to instruct the jury with CALCRI M No. 371, which informed th e jury it could consider an attempt by the defendant to create false ev idence or obtain false testimony. This instruction was based upon testimony given by defend ant and his friend Anshul Khetarpal. We shall conclude there was a factual basis for the instruction, and shall affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND On April 24, 2009, defenda nt and his girlfriend at th e time, Kathie Willoughby, attended a barbecue together. Defendant’s fr iend Khetarpal was also at the barbecue. Later in the evening, the three of them, toge ther with a friend of Willoughby’s, took a cab to Club Ice. According to defendant while they were at the club he saw Martinez approach Willoughby and get ve ry close to her. He though t that Willoughby was being assaulted and that he needed to “go address th e situation.” He went to Martinez, grabbed him by the shoulder to spin him around, and punched him on the right side of his face. Martinez fell to the floor. Defendant grabbed Willoughby’s hand and started to leave. They were stopped and detained by a bouncer. Defendant adm itted to the bouncer that he hit Martinez, and apologized for causing any problems. Martinez died on May 14, 2009. His d eath was the result of trauma from hitting
his head on the fl oor when he fell.
DISCUSSION
I Change of Venue Claim Forfeited Defendant filed a change of venue motion prior to jury selec tion. The morning before jury voir dire, the trial court denied the motion without prejudice to its renewal if problems were encountered dur ing jury selection. The ch ange of venue motion was not renewed after jury voir dire.3 “ ‘[W]hen a trial court initially denies a change of venue motion without prejudice,
a defendant must renew the motion after voir di re of the jury to pr eserve the issue for appeal. Here, although expre ssly invited by the court to renew the motion after jury selection, defendant failed to do so.’ [Citations.]” ( People v. Maury (2003) 30 Cal.4th 342, 388-389, quoting People v. Williams (1997) 16 Cal.4th 635, 654-655.) As in People v. Maury, the trial court informed defendant he could renew the motion after jury selection if a problem arose. Accordingly, defendant’s cl aim is forfeited on appeal for
failure to renew the motion following jury voir dire.
II There Was Sufficient Evidence for CALCRIM No. 371 Instruction
Defendant claims the trial court erre d when it gave CAL CRIM No. 371 because
there was insufficient ev idence to support the in struction. The instruction, relating to consciousness of guilt, informed the jury:
“If the defendant tried to create false evidence or obtain false testimony, that co nduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance; however, evidence of such an attempt cannot by itself prove guilt.
“If someone other than the defendant tried to create false evidence or provide false testimony, that conduct may show the defendant was aware of his guilt but only if the defendant was present and knew ab out that conduct or, if not present, authored the other person ’s actions. It is up to you to decide the meaning and impor tance of this evidence; however, evidence of such c onduct cannot prove guilt by itself.” The instruction was requested by the pr osecution. “A party is entitled to a requested instruction if it is sup ported by substantial evidence.” ( People v. Ross (2007) 155 Cal.App.4th 1033, 1049.) Substantial ev idence is evidence th at a reasonable jury could find persuasive. ( Id . at p. 1050.) On the other ha nd, “[i]t is error to give an4 instruction which, while correc tly stating a principle of law, has no application to the facts of the case. [Citation.]” ( People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The instruction here was based upon the te stimony of Khetarpal. He testified that
at the time of the offense he and defendant we re best friends. He recalled getting to Club Ice from the barbecue by taxi. He had a few drinks before going to the club. He
continued to drink at the club. He recal led seeing Willoughby in an uncomfortable situation, and said she had a struggle with someone. He th en saw defendant walking over toward Willoughby and Ma rtinez. He turned around, so he did not see defendant strike
Martinez. Following the incident, defendant was detain ed in front of the club. He estimated he was there for at least 15 minutes waiting for po lice to arrive. He testified that while he was waiting for police he saw Khetarpal in th e parking lot. The 911 call from Club Ice was received at 1:13 a.m. on April 25. Po lice arrived on the scene at 1:16 a.m.
At 12:53 a.m. a 911 call was received from the Vagabond Inn located about two
blocks from Club Ice. Police officers arrive d at the Vagabond Inn at 12:58 a.m., where they found Khetarpal knocking on the door of one of the r ooms. Khetarpal was placed under arrest for public intoxication at 1:00 a.m. He was transported to Shasta County jail. He ended up in a holding cell with defendant.
The incident at Club Ice was captured on video, and th e video was played for the jury. The prosecutor argued that the video showed the 911 call being made. Working back in time from the 911 call, which was placed at 1:13 a.m., the pr osecutor argued that the punch was thrown between 1:08 a.m. and 1: 10 a.m. She then argued that Khetarpal
could not have witnessed the actions of Mar tinez and Willoughby just prior to the punch because he had already been arrested at the Vagabond Inn. She then argued: “So, if you believe that the de fendant sat in that holding cell with his buddy Anshul, told hi m what happened, and Anshul just happened to, 45 days afte r the incident, tell Officer Hyatt that he saw Kathie being unco mfortable and having to shove5 Adam away, that would be pretty helpful to his side of the story which no one else saw.” Khetarpal admitted discussing the case with defendant before Martinez died, but
said he had not discussed the case with defe ndant since Martinez’s death. Defendant, on the other hand, testified he had never discussed the case with Khetarpal. In ruling on the instruction, the tria l court concluded that each side had
circumstantial evidence from which it could ar gue the question. The prosecution had the fact that Khetarpal was already in custod y when defendant came into the jail, the inference that Khetarpal was not present wh en the punch occurred, and the fact that defendant and Khetarpal were best friends. The defense had the inference that defendant and Khetarpal would no t create a conspiracy to lie when it was a documented fact that they had been in custody at the same time. The court deci ded to give the instruction because it would establish the rules by whic h the jury would consider the evidence without assuming that defendant tried to crea te false evidence or ob tain false testimony. Defendant argues it was error to give the instruction because “there was no
evidence whatsoever that [defendant] conspired with [Khe tarpal] to fabricate testimony. They were simply in th e same holding cell after the incide nt at Club Ice and both denied discussing the incident.” Apparently, defend ant’s argument is that the instruction may not be given unless there is direct evidence of a conspiracy to fabricate testimony. This is incorrect. All that is required is some ev idence that, if believed by the jury, would support an inference that there was an agreement to fabricate testimony. ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
Such circumstantial evidence was present in this case because the jury could have
inferred from the timeline of Khet arpal’s arrest vis-à-vis the punch leading to Martinez’s death that Khetarpal’s testimony was fabricated. The jury further could have inferred that Khetarpal and defendant conspired to present th is fabricated testimony from the facts: (1) that they were in the sa me holding cell at the same ti me, (2) that their testimonies6 were not in agreement as to whether they had discussed the case, and (3) that they were
best friends. This was sufficient ev idence to support the instruction.
DISPOSITION The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

MAURO , J.

MURRAY , J.