People v. Loera CA3

Filed 8/19/14 P. v. Loera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C075450

Plaintiff and Respondent, (Super. Ct. No. 13F00078)

v.

VICENTE RAMON LOERA,

Defendant and Appellant.

A jury found defendant Vicente Ramon Loera guilty of possessing a dirk or dagger or sharp instrument in prison. The facts were these: Defendant was an inmate at Folsom State Prison when Correctional Officer Carlos Sanchez noticed that defendant was “out of bounds” near another cell and “appeared to be moving items from a cell.” In defendant’s sweatpants’ pocket was an altered Bic pen. The tube of the pen was being used as a holder and inside the pen was a metal rod that had been sharpened to a point. Defendant testified that inmate “Rick” gave him the altered pen, and defendant was going

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to use it like a screwdriver to fix a used television that had broken buttons. The altered pen would have been useful to fix the television because the pen had a flat surface, similar to a Phillips screwdriver. On appeal, defendant contends: (1) he was denied his constitutional right to present a defense when the court excluded testimony critical to his defense; and (2) his trial counsel was ineffective. Disagreeing, we affirm. DISCUSSION I There Was No Error In The Court’s Exclusion Of Testimony Defendant contends he was denied his constitutional right to present a defense when the court excluded testimony critical to his defense. The evidence the court excluded was defendant’s testimony that Rick told him the altered pen worked to fix an appliance and would “facilitate what he needed do to with his television.” The court excluded the evidence, ruling that “ultimately . . . it is largely moot because the defendant testified to that same information.” The court was within its discretion to exclude the evidence because, as the court noted, similar evidence had already been presented. Defendant had already testified that “Rick” gave him the altered pen, and defendant was going to use it like a screwdriver to fix a television. The altered pen would have been useful because it had a flat surface, similar to a Phillips screwdriver. A court acts within its discretion when it excludes evidence that is cumulative. (People v. Brown (2003) 31 Cal.4th 518, 576.) As to defendant’s claim that the court’s exclusion of this evidence violated his right to present a defense, it did not. He got in the defense he wanted, which was that he intended to use the altered pen as a screwdriver and that it was designed to do so because it had a flat surface. As a general matter, application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense. (People v. Edwards (2013) 57 Cal.4th 658, 728.)