Filed 1/15/14 P. v. Canister CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIJAH CANISTER,

Defendant and Appellant. B242130

(Los Angeles County Super. Ct. No. BA390140)

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

William Hassler, under appointm ent by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, Stephanie A. Miyoshi and Robert C. Schneider, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

_____________ _____________2 Defendant and appellant E lijah 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 tr ial court prejudicially erred in allowing the prosecution to reopen its case-in-chief without a showing of good cause. We affirm.

FACTUAL AND PROCED URAL 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 estab lished that in July 2011, Sherine Brown lived in a one bedroom apartm ent with her daughter, Waynes ha Brown, and Waynesha’s

children. 2 Sherine used the living room as he r 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 Bra ux did not object to Fox’s relati onship 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 info rmation with mayhem, criminal threats and assault with a deadly we apon; in addition to two prio r prison term enhancements, a personal infliction of great bod ily injury enhancem ent was alleged on the assault charge. The trial court denied the prosecution’s motio n to add an aggravated mayhem charge. A jury found defendant not guilty of mayhem, but guilty of th e 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 bod ily injury enha ncement. In a bifurcated proceeding, the trial court found true the pr ior prison term enhancement. Defendant was sentenced to a total of 9 years in prison, co mprised of the 4-year high term for assault with a deadly weapon, plus a consecutiv e 3 years for the great bodily injury enhancement, plus a consecutive 2 years fo r the prior prison term enhancement; the high term of 4 years was imposed on the battery c onviction, but stayed pursuant to Penal Code section 654. (All future undesignated stat utory references are to the Penal Code.)

2 To avoid confusion, we refer to moth er and daughter by their first names.3 apartment, as did defendant. 3 Before falling asleep in the early morning hours of July 22, Fox wondered why defendant an d 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 li quid 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 no t see the perpetrator, Fox was sure it was defendant. By the time a neighbor, Anne, call ed 911, Fox knew th at Sherine was with

him and he could hear Anne speaking to the 911 dispatch er; Fox identified Sherine’s and Anne’s voices on the recording of the 911 call, which was played fo r the jury. Fox was transported by ambulance to a hospital where he was treated for bu rns to his head, face

and arm. After he was released from the hospital th at same day, Fox received a telephone call from defendant, who said, “Y ou’ll never touch her again, w ill you?” Either later that day or the next day (July 23), Fo x went to Sherine’s apartment to retrieve his bike. While

Fox waited on the sidewalk for someone to br ing 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 reporte d defendant’s threats to the police later that night. At the time, Fox on ly 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 defendan t had poured hot wate r on him, but did not tell Villegas he saw defendant do it because he ha d been asleep at the time.

3 During jury selection on Friday, Februa ry 10, 2012, the pros ecutor informed the trial court that Fox, who was semi-transie nt, could not be located. Following an Evidence Code section 402 hearing, the tr ial court found the People had used due diligence to locate Fox, and allowed Fox’s pre liminary hearing testimony to be read into evidence. Fox was later located and testifie d without any objection on the grounds that his preliminary hearing testim ony had already been introduc ed. (See e.g. Evid. Code, § 352.)4 When Los Angeles Police Officer Carlo Za ragoza arrived at Sherine’s apartment, Fox was already in an ambulance being treate d for his injuries. Waynesha told Zaragoza that defendant was jealous that Fox had give n Waynesha a massage a few days before. That morning, Waynesha saw defendant prepar ing 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 defe ndant did not sleep at Sherin e’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 an d 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 boi ling 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 late r, Sherine heard Fox screaming and then saw defendant run out of the apartmen t. 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 ba ck 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 Wa ynesha and Sherine testif ied 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 de fendant pour boiling hot water on Fox, heard Fox screaming in pain or saw de fendant run out of the apartment. Sherine denied that her voice was on the tape of the 911 call. Duri ng his testimony, defendant identified one of the voices on the tape as Sherine’s.5 B. The Defense Case

Defendant testified that he was at Sherin e’s apartment the even ing 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 Wa ynesha 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 Wayn esha a massage.

Defendant did not recall calli ng Fox and saying, “Y ou will never touch her again, will you?” Waynesha testified that she slept on the fl oor in Sherine’s room that night because the apartment windows were br oken and she was afraid to be alone. Early the next morning, Waynesha was awak ened by the sound of the back door opening; she saw Sherine in the kitchen boiling water for laund ry 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 talk ed to the police about what happened. Waynesha falsely

told defendant’s former defe nse 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 in terviewed 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 for6 laundry. Waynesha did not sa y she saw Keyroy run out of th e apartment. Moore did not clarify whether Waynesha said she saw Ke yroy 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 th at the trial court abused its discretion in allowing the prosecution, after it had “reste d,” to introduce testimony by Sherine, Waynesha, Zaragoza and Fox, without a show ing of good cause for the prosecution to reopen its case-in-chief, as re quired 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 th e order of proof at trial. First, the prosecution offers evidence in support of the charge. Se cond, the defendant offers evidence in support of the de fense. “The parties may th en respectively offer rebutting testimony, only, unless the court, for good reas on, in furtherance of justice, permit them to offer evidence upon th eir original case.” (§ 1093, su bd. (d).) “[F]or good reasons, and

in the sound discretion of the co urt, 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 evid ence, the prosecution is limited to introducing only rebuttal evidence, unless the prosecution shows good cause for reopening its casein-chief. Thus, it is the fact that the prosec ution has finished puttin g on its case-in-chief and the defense has begun introducing its eviden ce that triggers application of the Penal Code section 1093, subdivisio n (c) limitation on the prosecu tion’s introduction of new (as opposed to rebuttal) ev idence. As we shall explain, the section 1093, subdivision (c)

limitation on introduction of new evidence in the prosecu tion’s case-in-chief was not triggered when, during Villegas’s testimony, th e prosecutor indicated Villegas would be

his last witness.7 When the trial started, w itnesses Sherine and Waynesha had not been located. Defendant had requested a body attachment for Waynesha. On We dnesday, February 15, while Villegas (the officer who took Fox’s po lice 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 c ourt 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 (Febru ary 16), the defense investig ator had found Sherine and Waynesha, and brought them to court. At th e prosecutor’s request, the trial court ordered

them to remain as witnesses fo r the People. When Villegas fi nished testifying later that day, there ensued th e following colloquy: “THE COURT: . . . Call your next witne ss. [¶] [THE PROSECUTOR]: Yes. We would call A – [¶] [THE DEFENDANT] : I thought he rested. [¶] THE COURT: No, he didn’t. [¶] [THE DE FENDANT]: 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 DEFEND ANT]: 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.8 Thus, the record is clear that the pros ecution had not finish ed 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 prosecuti on had not “rested” its case-in-chief since it’s witness, Villegas, was still testifying and defendan t 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 ongoi ng 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 in troduce additional evidence, ha d not been triggered because defendant had not begun putting on his own ca se. 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 pros ecution’s case-in-chief was not ongoing when th e prosecutor indicated Villegas would be his last witness. Defendant is incorrect. The facts are that defendant was in the process of crossexamining Villegas when cour t recessed on February 15. The prosecutor redirected additional questions to Ville gas on February 16, followed by more cross-examination by defendant. But even if the prosecutor ha d elected not to ask additional questions on February 16, the fact that defendant’s cro ss-examination of the w itness was still on-going meant that the prosecution’s case-in-chief was, too.