People v. Gardner CA6 ( 2021 )

Filed 6/21/21 P. v. Gardner CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047396
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 19CR02893)
v.
RYAN THOMAS GARDNER,
Defendant and Appellant.
A jury convicted Ryan Thomas Gardner of making criminal threats and false
imprisonment. On appeal, Gardner raises a single claim of evidentiary error related to his
conviction for criminal threats, contending the trial court erred by allowing the victim to
testify that Gardner wanted her to get an abortion. For the reasons explained below, we
affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
In May 2019, the Santa Cruz County District Attorney filed an information
charging Gardner with making criminal threats against Jennifer C.1 (Pen. Code, § 4222;
1
To protect the privacy of the victim, we refer to her initially by her first name
and the first initial of her last name. At times thereafter, we refer to the victim by her
first name only. (Cal. Rules of Court, rule 8.90(b)(4).)
2
Unspecified statutory references are to the Penal Code.
count 1) and false imprisonment of Jennifer (§ 236; count 2).
In July 2019, a jury heard evidence and found Gardner guilty as charged. The trial
court sentenced Gardner to the upper term of three years in prison on count 1 and to 140
days in county jail on count 2 to run concurrent with count 1.3 The trial court also
imposed various fines and fees.
B. Pretrial Evidentiary Ruling
Gardner moved in limine to preclude Jennifer from testifying at trial about
information she had given in an interview with a district attorney investigator. Defense
counsel told the trial court that there had been a discussion between Jennifer and the
investigator “in which the pregnancy comes up and she relates to the inspector that my
client suggested that she should get an abortion and said as many as ten times.” Defense
counsel asserted that this information was prejudicial and without probative value.
The prosecutor countered that the information was relevant because it went to the
“reasonableness of [Jennifer’s] fear in terms of not only for herself but for the unborn
child that she was carrying” and Gardner’s intimation that he wanted to terminate that
pregnancy combined with making threats “underscores the fear she was feeling that day.”
Defense counsel responded that “under the circumstances of this case that’s not a
reasonable amount of probative value that should outweigh the prejudice here.”
After hearing argument from the parties, the trial court ruled that it was “going to
exclude that abortion stuff.” Shortly after the trial court issued this ruling, Jennifer
testified as the People’s first trial witness.
3
The trial court also sentenced Gardner for a separate case (No. 15CR01738) that
involved crimes against a former girlfriend. At trial, the trial court took judicial notice of
Gardner’s guilty plea in case No. 15CR01738 to felony stalking, false imprisonment, and
violating a restraining order.
2
B. Evidence Presented at Trial
Gardner and Jennifer dated for 10 months. After the first few months of their
relationship, Gardner and Jennifer began to argue over Gardner’s drug problem and his
use of dating applications to meet other women. When he was on drugs, Gardner would
get violent. During one argument, Gardner locked Jennifer in a room overnight and took
her bag of clothes. In another incident, he appeared at her work and attacked her. There
were also other occasions in which Gardner was violent toward Jennifer, prevented her
from leaving, or took her phone. She did not report these incidents to the police because
she was afraid; Gardner would get violent when she mentioned the police. Jennifer
stayed in the relationship “out of fear” and because she did not want Gardner to kill
himself, which he threatened to do.
In September 2018, Jennifer and Gardner discovered Jennifer was pregnant.
Jennifer’s pregnancy was one of the reasons she stayed in the relationship with Gardner.
The incident underlying the charges against Gardner occurred on Thanksgiving
Day, November 22, 2018. Jennifer and Gardner were still in a relationship. Jennifer was
with her family and Gardner was supposed to come over. However, he spent the morning
somewhere else and Jennifer got upset. She left to go look for Gardner because she
guessed he was “with another girl.”
Jennifer drove her Ford Mustang to Gardner’s house. After she arrived at his
house, she pulled over to the right a little past his house, parked in between two cars, and
tried to call him. While she was calling him and only a few minutes after she had pulled
over, Gardner pulled up next to her in the middle of the road in a Ford Expedition, a car
that was “a lot larger” than her own.
After he had pulled up next to Jennifer, and while they were each sitting in their
respective driver’s seats, Gardner began yelling at Jennifer through his passenger
window. They argued for a couple minutes and, after Gardner started getting more
aggressive, Jennifer tried to leave. When she tried to back up, Gardner backed up his car.
3
When she tried to go forward, Gardner went forward. Through these maneuvers, Gardner
blocked Jennifer from leaving. Jennifer estimated he did this back-and-forth movement
two to three times.
Eventually, Jennifer was able to get by Gardner’s car and started driving away.
She noticed Gardner was following her, so she sped up. Gardner then sped up. They
were driving in a residential area, and Gardner was driving “pretty fast and close.”
Jennifer was nervous and was trying to get to the freeway.
As she continued driving, Jennifer spoke to Gardner on the phone. She told
Gardner to stop following her. Gardner told her to pull over or he was “going to rear
end” her. On direct examination, the prosecutor questioned Jennifer about her pregnancy
and her feelings while Gardner followed her in his car. Jennifer stated she “made a
bunch of turns,” but he continued to follow her and she was afraid. She confirmed she
was pregnant at the time. The prosecutor then asked “Were you thinking about that?”
and Jennifer responded “Yes.” When Gardner told Jennifer on the phone to pull over or
he was going to “rear end” her, she took that as a serious threat. The prosecutor inquired
“Why?” and she responded that “Because mostly - - I mean I’m pregnant at this point.
I’m thinking about that more than anything and - - I mean his actions had progressed, so I
thought that was something he would go through with.”
Due to her fear, Jennifer was shaking and could barely hit the gas or brake pedals
as she was driving. She felt like she was grabbing the steering wheel to brace herself for
the impact that could happen. After she told Gardner to stop following her or she would
call the police, he stopped following her.
Following this Thanksgiving Day incident, Gardner persisted in stalking and
contacting Jennifer. Approximately two weeks later, she ended their relationship and
reported his conduct to the police.
Defense counsel cross-examined Jennifer about her direct testimony. Among
other topics, defense counsel asked Jennifer the following question: “In your -- toward
4
the end of your interview with [the district attorney investigator], is it -- do you recall that
she asked you, ‘Has he ever threatened to hurt or kill your unborn baby?’ ” Before
Jennifer answered, the prosecutor objected to the question and referenced the prior
“[Evidence Code section] 352 discussion” conducted pretrial. The prosecutor reminded
the trial court that it had ruled that statements about the baby could not come in. The trial
court responded, “I don’t think so. You convinced me the other way. You did convince
me the other way.” Defense counsel did not intervene in this exchange or remind the trial
court that it had excluded testimony about abortion.
Following this exchange, defense counsel resumed his questioning of Jennifer and
asked her whether she had told the district attorney investigator that Gardner had not
threatened to hurt or kill her unborn baby. Jennifer agreed she had said that. Defense
counsel told the trial court he had no more questions for Jennifer.
Before the prosecutor asked Jennifer further questions, and at the prosecutor’s
request, the parties had a sidebar discussion with the trial court. The prosecutor stated, “I
just want to be very clear. [¶] My understanding of the ruling regarding his
response - - he - - she told him she was pregnant. He then said, ‘You need to get an
abortion,’ seven to ten times. My understanding of that ruling was that you said that was
excluded as it was too prejudicial.” The trial court stated, “That’s not the way I
remember it, but it doesn’t matter. He opened it.” Defense counsel did not object but
rather stated, “All right. Having opened, your ruling is that they can inquire about him
asking if she would?” The trial court confirmed its ruling. Defense counsel did not
object to the trial court’s ruling.
On redirect examination, the prosecutor asked Jennifer if she had told the
investigator that Gardner had never threatened her or her unborn baby and Jennifer
responded “I guess so.” The prosecutor then questioned Jennifer about what Gardner had
told her when she had informed him she was pregnant. Jennifer stated, “[a]t first he
asked me to get an abortion.” She stated that Gardner returned to the subject of wanting
5
an abortion “[m]aybe like three times” over a period of time. Jennifer also testified that
she had looked through his phone and internet history and found that he had been
“looking up how to naturally cause a miscarriage.” This “[t]errified” her because she
wanted to have the baby and have a healthy pregnancy. The prosecutor then asked “Was
that on your mind on Thanksgiving Day as you were driving?” and Jennifer responded
that it was. The prosecutor inquired if she thought on that Thanksgiving Day that
Gardner might hurt her and her unborn child. Jennifer responded, “On that day, yeah.”
Two other women who had previously dated Gardner also testified. Each woman
testified that during the relationship Gardner had subjected her to violence, threats, and
manipulation.
The defense did not present any evidence at trial.
II. DISCUSSION
Gardner seeks reversal of his conviction for criminal threats (count 1).4 Gardner
asserts the trial court prejudicially erred by allowing the prosecutor to elicit Jennifer’s
testimony that Gardner had on multiple occasions asked her to get an abortion and she
had discovered that he had done research on how to cause a miscarriage. Gardner argues
this evidence was inadmissible under the Evidence Code as irrelevant and prejudicial and
further contends that its admission violated Gardner’s constitutional right to due process.
A. Legal Principles
“Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is
defined as ‘evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.’ (Evid. Code, § 210.) ‘The
court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
4
Gardner does not raise any claim related to his conviction for count 2 (false
imprisonment).
6
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ (Evid. Code, § 352.) ‘ “Prejudice,” as used in Evidence Code
section 352, is not synonymous with “damaging.” [Citation.] Rather, it refers to
evidence that uniquely tends to evoke an emotional bias against the defendant as an
individual, and has little to do with the legal issues raised in the trial.’ ” (People v. Miles
(2020) 9 Cal.5th 513, 587 (Miles).)
“ ‘A trial court has “considerable discretion” in determining the relevance of
evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code
section 352 to exclude even relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial effects.’ ” (Miles, supra,
9 Cal.5th at p. 587.) Our review of a trial court’s rulings regarding relevancy and
admissibility under Evidence Code section 352 is for abuse of discretion. (Ibid.) “ ‘ “We
will not disturb a trial court’s exercise of discretion under Evidence Code section 352
‘ “except on a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” ’ ” (Id. at
pp. 587–588, italics omitted.)
B. Analysis
Gardner contends the trial court abused its discretion in admitting at trial
Jennifer’s testimony that Gardner repeatedly requested she have an abortion and he had
researched ways to cause a miscarriage. Gardner asserts this evidence was irrelevant and,
even if relevant, its probative value was outweighed by its prejudicial impact because the
“[t]he subjects of abortion and personally induced miscarriages evoke strong emotions
from members of the public.” The Attorney General argues the evidence was relevant to
“elements of making a criminal threat that she reasonably felt sustained fear for her own
safety,” was also properly admitted to “explain or rebut testimony or inferences from
defense cross-examination” of Jennifer, and had “little or no risk of a prejudicial effect
that was unrelated to its probative value.”
7
Turning first to the question of relevance, we are not convinced by Gardner that,
under the circumstances of this case, the evidence had no probative value as to the
criminal threats charge. “To establish a criminal threat, the prosecution must prove:
(1) the defendant willfully threatened death or great bodily injury to another person;
(2) the threat was made with the specific intent that it be taken as a threat, regardless of
the defendant’s intent to carry it out; (3) the threat was ‘on its face and under the
circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an immediate
prospect of execution’; (4) the threat caused the person threatened ‘to be in sustained fear
for his or her own safety or for his or her immediate family’s safety’; and (5) this fear
was reasonable under the circumstances. (§ 422, subd. (a); see People v. Toledo (2001)
26 Cal.4th 221, 227–228.)” (People v. Turner (2020) 10 Cal.5th 786, 826.)
The abortion evidence was relevant in that it tended to establish Jennifer’s fear
upon hearing Gardner’s threat to rear end her car. When he made this threat, the jury
could reasonably infer Gardner and Jennifer knew she was still pregnant. Her testimony
about Gardner’s prior statements and actions regarding her pregnancy supports an
inference that she reasonably and subjectively feared for her safety when he threatened
her with his much larger car. Jennifer testified that during the incident she was afraid
Gardner would hurt her and her unborn child.
Moreover, the cross-examination by defense counsel enhanced the evidence’s
probative value. On cross-examination, defense counsel sought to have Jennifer confirm
that she had previously told the district attorney’s investigator that she was not afraid for
the safety of her unborn child, which Jennifer then confirmed. This testimony potentially
called into question whether she subjectively or objectively feared for her safety, in that
the jury could infer she either did not subjectively or objectively fear for her safety, even
though she was pregnant. The prosecutor on redirect examination then sought to
challenge the inference that Jennifer actually believed Gardner would not harm her or her
8
unborn child. Thus, this evidence—originally elicited by Gardner’s counsel—could
assist the jury in resolving the material question of whether the prosecutor had proven
Jennifer subjectively and reasonably feared for her own safety.
“Under the doctrine of ‘opening the door,’ one party may render otherwise
inadmissible evidence admissible by introducing the topic selectively such as to leave a
misleading impression. [Citations.] A trial court’s ruling on whether rebuttal evidence is
admissible on this theory is reviewed for abuse of discretion.” (People v. Kerley (2018)
23 Cal.App.5th 513, 553.) Under these facts, we determine the trial court did not abuse
its discretion, even though the trial court did not accurately recall its previous ruling on
the motion in limine related to the abortion evidence.
Turning to whether the probative value of the evidence outweighed a substantial
danger of undue prejudice, we are not convinced the evidence presented in this case was
unduly prejudicial. “Evidence is prejudicial within the meaning of Evidence Code
section 352 if it ‘ “uniquely tends to evoke an emotional bias against a party as an
individual” ’ [citation] or if it would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause
on the basis of extraneous factors.” ’ ” (People v. Cowan (2010) 50 Cal.4th 401, 475.)
“ ‘ “In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 320.) However, “evidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point upon which it
is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In
such a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.” ’ ” (People v. Bell (2019) 7
Cal.5th 70, 105 (Bell).)
We decide that the evidence that Gardner asked Jennifer to get an abortion and
Jennifer discovered that he had looked up ways to cause a miscarriage was on balance not
of such a nature that it would inflame the emotions of the jurors or mislead them from
9
their task of deciding whether the prosecutor proved Gardner’s guilt of making criminal
threats. The testimony on this topic, as discussed above, did not directly engage the
morality of abortion but instead tended to prove elements of the charged crime and
contextualized for the jury Jennifer’s testimony on cross-examination.
Gardner cites to various decisions, primarily by federal courts, for the general
proposition that the “subjects of abortion and personally induced miscarriages evoke
strong emotions from members of the public.” (See, e.g., Greenville Women’s Clinic v.
Bryant (4th Cir. 2000) 222 F.3d 157, 175 [stating there is a “deeply divided societal
debate over the morality of abortion”].) While it may be true that the subject of abortion
is controversial, the evidence at trial did not go to the morality of abortion as a general
matter but rather were relevant to Jennifer’s state of mind and the reasonableness of her
fear. There were disputed factual issues the jury had to resolve. In this context,
Jennifer’s testimony did not rise to the level of inflaming the emotions of the jury but
rather properly allowed the jury “to logically evaluate the point upon which it is
relevant.” (Bell, supra, 7 Cal.5th at p. 105.) In our view, the trial court did not exceed
the bounds of reason, and therefore did not exceed its discretion, in allowing the
prosecutor to elicit this testimony in its redirect examination of Jennifer.
Likewise, the trial court’s admission of the evidence did not violate Gardner’s
constitutional right to due process. In our judgment, the admission of this probative
evidence did not render Gardner’s trial fundamentally unfair. (See People v. Falsetta
(1999) 21 Cal.4th 903, 913.) Therefore, its admission did not constitute a violation of
Gardner’s right to due process.
III. DISPOSITION
The judgment is affirmed.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047396
People v. Gardner