People v. Lena ( 2017 )

Filed 2/22/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A138474
v.
MICHAEL ANGELO LENA, (Marin County
Super. Ct. No. SC106831A)
Defendant and Appellant.
Appellant Michael Angelo Lena was convicted of two counts of assault with a
semiautomatic firearm upon a peace officer (Pen. Code, § 245, subdivision (d)(2)),
residential burglary (Pen. Code, § 459), and possession of a firearm by a felon (Pen.
Code, § 12021, subdivision (a)), for which, with enhancements and prior convictions, he
received a sentence of 51 years in state prison. He now appeals, arguing it was error to
sanction him for refusing to answer questions on cross-examination by striking his entire
testimony, and to admit evidence of various uncharged burglaries under Evidence Code
section 1101, subdivision (b) to show intent, motive and common plan. We affirm,
addressing the issue of sanctions for refusal to submit to cross-examination in part II.A of
this opinion, which is published, and the Evidence Code section 1101, subdivision (b)
issue in part II.B of the opinion, which is unpublished.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.B.
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I. BACKGROUND
On February 17, 1999, police officers responded to a reported home burglary
alarm going off in Corte Madera at what was later identified as the Ryborg/Fellows
home. The officers encountered Lena in the neighborhood, where at least one home had
recently been broken into. Lena, sporting fresh mud on his trousers, got into his car and
drove away. The officers found the mud suspicious because it had rained that day and
the Ryborg/Fellows home was near a wooded hillside thick with mud from the rain.
They therefore followed Lena’s car for a short distance and then tried to make a traffic
stop. Lena attempted to escape, but cornered himself on a dead-end street, where he
jumped out of his car and pointed a gun at the pursuing officers. One of the officers drew
his own gun in defense, which surprised Lena, and he fled the scene on foot down a bike
path. Unable to catch him, the officers searched Lena’s vehicle and discovered an arsenal
of firearms that had been stolen in four different burglaries from various locations
throughout the Bay Area within a period of less than two years, and a number of stolen
passports, one of which had just been taken from Werner Maassen’s house, also in the
Ryborg/Fellows neighborhood, a short time earlier in the day. The rest of the passports
also bore an address in the same neighborhood. When Maassen returned home from
work that afternoon, he confirmed that his home had been burglarized and ransacked and
his passport stolen. It was the Maassen burglary for which Lena was ultimately
prosecuted and convicted in this case.
After his escape from the officers, Lena fled north by truck, avoiding capture, and
made it all the way to the Canadian border. But as he attempted to cross the border
control point, he behaved suspiciously, and the Royal Canadian Mounted Police tried to
apprehend him. The result was a high-speed chase into Canada that ended abruptly with
a roadblock and a shootout with the pursuing Canadian officers. Lena was wounded,
taken into custody, and after a brief stint in the hospital, convicted and imprisoned in
Canada for discharging a firearm at a person and attempted murder. After serving his
sentence, Lena was brought back to California to be tried for the offenses that led to his
flight into Canada.
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II. DISCUSSION
A. Striking of Lena’s Testimony
We first address Lena’s argument that the trial court erred in striking his
testimony, a claimed error which he says deprived him of an adequate defense. Lena
contends the striking of his entire testimony was an abuse of the trial court’s discretion
because the trial court failed to consider less severe alternatives and should have imposed
a lesser sanction. We disagree.
1. Lena’s Testimony and Conduct at Trial
At trial, Lena chose to represent himself. He based his case primarily on his own
testimony, the sum and substance of which was significantly different from what had
been reported by California and Canadian police. Lena claimed he was delivering
medicine to a friend in Corte Madera when he was pulled over by police officers for no
apparent reason. He denied burglarizing any homes, claiming the stolen passports and
firearms found in his car had been planted there by both California and Canadian officers
sometime during the years he spent in Canadian prison.
Lena claimed he never pointed a gun at pursuing officers in California, and that he
fled because he feared the officers were actually federal agents who had been following
him for a few years. The only reason he sought refuge in Canada, Lena explained, was
because, upon escaping the officers in Marin County, he saw his face plastered across the
news as a burglary suspect, and he felt it was in his best interest to flee the country even
though he was innocent.
Lena also claimed he passed though the Canadian border without incident, but the
Canadian police put up a barricade further down the road in order to stop him. According
to Lena, after he crashed into a ditch, Canadian officers snuck up and shot him twice
from behind, causing severe wounds which put him in the hospital. He never fired back,
he claimed, because he had no gun; he said the firearms the Canadian officers found in
his truck, like the guns found in his car in the U.S., were plants used to frame him.
After giving his testimony, Lena told the court and the jury he would not answer
any of the People’s questions during cross-examination. The court cautioned him against
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that course, explaining that if he refused to answer appropriate questions during cross-
examination, his entire testimony would be stricken from the record. That did not deter
Lena, and he replied it would not matter if his testimony was stricken because the jurors
wouldn’t be able to “delete [his testimony] from their memory.”
During cross-examination, Lena held true to his threat and refused to answer any
questions. He told the jury he was doing so because he believed the People had
“stonewall[ed]” him, and he thought it only fitting to do the same thing to them. Again
the court tried to warn Lena it would strike his testimony from the record if he continued
acting belligerently, but he was undeterred. In light of his refusal, the court struck his
entire testimony.
2. The Striking of Lena’s Testimony Was Not an Abuse of Discretion
A defendant is entitled to a fair opportunity to defend against the State’s
accusations, which includes the right to give testimony on his own behalf at trial. (See
Chambers v. Mississippi (1973) 410 U.S. 284, 294; see also People v. Reynolds (1984)
152 Cal. App. 3d 42, 46 (Reynolds); People v. Robles (1970) 2 Cal. 3d 205, 214-215.) If a
defendant chooses to exercise that right, the People may cross-examine him to test his
credibility or otherwise refute his statements. A defendant does not have the right to
present facts favorable to his case without subjecting himself to cross-examination on
those facts. (People v. Harris (1981) 28 Cal. 3d 935, 953; Fost v. Superior Court (2000)
80 Cal. App. 4th 724, 736.)
Courts have long recognized that when a defendant refuses to submit to cross-
examination, a trial court may, in its discretion, impose sanctions. (People v. Robinson
(1961) 196 Cal. App. 2d 384, 390.) The standard governing what sanction is appropriate
may be stated, generally, tracking Wigmore’s summary of the rule, as follows: “ ‘Where
the witness, after his examination in chief on the stand, has refused to submit to cross-
examination, the opportunity of thus probing and testing his statements has substantially
failed, and his direct testimony should be struck out. On the circumstances of the case,
the refusal or evasion of answers to one or more questions only need not lead to this
result. [Emphasis added.] . . . [¶] Courts treat this situation with varying degrees of
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strictness. It should be left to the determination of the trial judge, regard being had
chiefly to the motive of the witness and the materiality of the answer.’ (5 Wigmore,
Evidence [3d Ed.] p. 112.)” (Ibid.)
Lena relies on Reynolds, supra, 152 Cal.App.3d at pages 47–48, a case, like this
one, in which the defendant refused to answer questions on cross-examination after
testifying in his defense, and the trial court, as here, struck his entire testimony. (Id. at
p. 45.) The imposition of that remedy was affirmed on appeal. (Id. at p. 47.) In the
course of its analysis, the appellate court set forth some guidelines for the exercise of
discretion in situations where a trial court is confronted with a defendant who refuses to
submit to cross-examination. Because striking a defendant’s entire testimony is so
drastic, the Reynolds panel explained, trial courts should first consider a less severe form
of sanction such as instructing the jury to take the defendant’s refusal to answer questions
into account in assessing his credibility or partially striking his testimony. (Id. at pp. 47–
48.)
Reynolds was a case in which defendant only refused to answer a few specific
questions on cross-examination. The questions concerned the identity of a crime partner,
and the reason the defendant gave for his unwillingness to answer was fear of retaliation.
Even so, his refusal made effective cross-examination “extremely difficult, if not
impossible” because the questions went to the core of his testimony. (Reynolds, supra,
152 Cal.App.3d at p. 47.) Because the prosecution’s ability to cross-examine was
materially hindered, the court reasoned, striking the entirety of his testimony was the only
appropriate sanction in that situation. (Ibid.)
If anything, the record here provides much stronger support for the striking of
testimony in toto than did the record found to be sufficient in Reynolds. While the
defendant in Reynolds had a rational, if ultimately unacceptable, basis for refusing to
answer questions put to him on cross examination, Lena tried to justify his defiance as
retaliation for unspecified “stonewalling” by the prosecution , a problem which, had it
been real, he should have dealt with by objection when it arose, not by obstructing his
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own cross-examination. Unlike the defendant in Reynolds, moreover, Lena refused to
answer any questions at all, even basic questions about identifying information.
It is evident from the record that the trial court appropriately took into account
Lena’s motive for refusing to submit to cross-examination and considered the degree of
hindrance to the prosecution. It is also evident that the trial court took a deliberate,
measured approach, first giving Lena multiple warnings before deciding to strike his
testimony. Quite obviously, the lesser sanction of partially striking his testimony was not
appropriate, because Lena’s categorical refusal to submit to any cross examination did
not allow the parsing of his testimony by subject matter. Given Lena’s absolutist stance
and the frivolous rationale he gave for taking it, the court was well within its discretion to
conclude that a lesser sanction was not commensurate with the injury to the truth-seeking
process that Lena had inflicted.
Lena insists the court had an obligation to impose the least drastic option. For this
argument, he offers a misreading of Reynolds. Reynolds does not announce, as Lena
suggests it does, that the proper sanction must be the least drastic option available; it
merely states that a court should consider imposing less drastic alternatives before
choosing a greater sanction. (Reynolds, supra, 152 Cal.App.3d at pp. 47–48.) Here,
although the court did not make an express finding that the lesser sanction of instructing
the jury to take Lena’s refusal to answer cross-examination questions into account in
assessing his credibility, we imply that finding. The panel in Reynolds pointed out that a
less drastic option had been available, but—without an express finding from the trial
court on the point—still affirmed the striking of the defendant’s entire testimony because
a lesser sanction would have been inappropriate. (Id. at p. 47.) The same is true here.
B. Admissibility of Uncharged Burglaries
We next address whether it was an abuse of discretion to admit evidence of five
uncharged burglaries to prove Lena’s intent, motive, and common plan in committing
the charged Maassen burglary. Lena appeals on two grounds. First, he argues it was an
abuse of discretion to admit the burglaries under Evidence Code section 1101,
subdivision (b), because there was insufficient evidence to show he was their
6
perpetrator, as a preliminary fact. Second, he argues it was an abuse of discretion not to
exclude the burglaries under Evidence Code section 352 and a violation of due process
because the uncharged burglaries were so dissimilar to the charged burglary that they
had little probative value to outweigh the prejudicial effect on the jury.
We conclude the trial court properly determined there was substantial evidence of
Lena’s connection to the uncharged burglaries as a preliminary fact. We further
conclude we do not need to address the merits of Lena’s Evidence Code section 352
claim because he waived that challenge on appeal, and any potential error was harmless.
1. The Uncharged Burglaries
After Lena’s encounters with police officers in Corte Madera and Canada, the
officers in both countries discovered stolen firearms, passports, and jewelry in his
vehicles, all of which had been stolen in five different burglaries of affluent homes
throughout the Bay Area within twenty-one months of his capture.
The first, the Collins burglary, took place May 17, 1997 in Mill Valley. The
Collins house, which sits on a secluded hillside, had been entered into through an
unlocked back window and ransacked sometime during the day. A Beretta 7.65 semi-
automatic firearm had been taken, which was discovered by officers in Lena’s car in
Corte Madera after the charged burglary in February 1999, as well as a Taurus nine
millimeter semi-automatic firearm which was found in Lena’s truck in Canada a few days
later.
The second, the Cone burglary, took place July 3, 1998 in San Carlos, in San
Mateo County. Like the Collins house, the Cone house is secluded, multi-leveled, and
sits on a hillside. The burglar had entered the house through an unlocked back door.
Two guns were taken from the Cone house, one of which was a nine millimeter Glock
semi-automatic firearm that was later found to be the gun Lena fired at Canadian officers
in February 1999.
The third, the Hale burglary, took place October 29, 1998, in Walnut Creek. The
Hale house is located on a narrow, winding road approximately three-quarters of a mile
off the main road. Sheridan Hale is the only person who lives on this road. The burglary
7
took place in the evening, but like the Collins house, the means of entry was also through
a rear window whose screen had been removed. The Hale house was not thoroughly
searched like the Cone or Collins houses, but Hale had left the stolen item—a model
5906 nine millimeter Smith and Wesson semi-automatic handgun—sitting on his bed.
The stolen firearm was found in February 1999 in Lena’s car in California.
The fourth, the Trembly burglary, occurred in San Bruno, also in San Mateo
County, on November 1, 1998. Matthew Trembly reported that he had returned to his
house to find his garage door opened on several occasions just before the burglary of the
garage took place. The item stolen by the burglar was a Smith and Wesson semi-
automatic .45 handgun, which Trembly had left in a canvas bag hanging on his work
bench. This firearm was later found in Lena’s truck in Canada in February 1999.
The fifth, a burglary committed in the Lake house in Corte Madera, occurred
February 14, 1999, just three days before the Maassen burglary. Sometime during the
afternoon, the burglar smashed open the Lakes’ sliding glass back door to gain entry.
The Lakes’ spare bedroom had been completely ransacked, from which jewelry and the
family’s passports had been stolen, which were found in Lena’s car by Corte Madera
officers three days later, and they also discovered muddy footprints in their upstairs
bedroom. The Lake house, like the previous four houses, also had secluded means of
access: A small, public-access jogging path directly behind the house.
The charged Maassen burglary took place on February 17, 1999 in Corte Madera,
not far from the Lake house. The Maassen house sits on an incline, and the backyard is
steep and wooded. The burglar forced open and entered through the rear window of the
downstairs master bedroom during the daytime, like the Collins and Hale burglaries.
Maassen’s house had been significantly searched—containers in the bedroom, hallway,
closet, library, and upstairs living room had all been rifled through. Like the Lake house,
the item stolen from the Maassen house was a passport, which also was found in Lena’s
car in California on the same day.
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2. The Court’s Ruling on Admissibility
From the outset of the case, in his various filings and court appearances, Lena
consistently denied committing the Maassen burglary, or any burglary, and similarly
denied even having possessed the items found in his vehicles. He also claimed that
California officers, Canadian officers, and the prosecutor had planted the evidence when
he was in Canadian prison.
To refute Lena’s denials, the People filed a motion in limine in August 2012
seeking admission of testimony by the victims of the five uncharged burglaries1 to prove
Lena’s intent, motive, and identity in the charged Maassen burglary. A few days after the
People filed the in limine motion, Lena filed a motion in opposition (which he titled a
“[m]otion to strike/dismiss”). Lena asserted the People were lying about the evidence,
the items allegedly found in his vehicles were “planted,” and they had convinced the
victims to lie for them.
In the course of the proceedings, the court, exhibiting admirable patience,
attempted to work through the backlog of over 2,000 motions Lena had filed, most of
which were denied for failing to provide legal bases. On September 12, 2012, while the
court was addressing several of Lena’s filed motions, Lena expressed a sudden desire to
go directly to trial and withdrew every single motion the court had yet to rule upon,
including his motion related to the uncharged burglaries. The court construed this as
1
The People also introduced evidence of two other uncharged crimes in addition
to the five uncharged burglaries: the break-ins at the Ryborg/Fellows and Immerman
residences. While nothing was taken from either home, these crimes were relevant to the
People’s case because they were committed on the same day, in the same city, and on the
same street (indeed, the Immerman home is just up the hill) as the charged burglary of the
Maassen home. The break-ins also feature similar circumstances to the Maassen
burglary, such as rear entry, secluded location, and easy access to side roads.
Furthermore, the Immerman house was entered through a sliding glass backdoor, which,
like in the Lake burglary, had been shattered, and the house had been ransacked. Lena’s
counsel does not question the admissibility of the Ryborg/Fellows or Immerman break-
ins, only the five uncharged burglaries.
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Lena asserting his right to a speedy trial, and the trial was ultimately set to start on
October 22, 2012.
The court considered the in limine motion at issue here on October 15, 2012. At
that time, Lena initially reiterated his theory that the evidence linking him to the
uncharged burglaries had somehow been planted in his vehicle by law enforcement or
was supported only by perjured testimony. After such vehement denials, Lena, without
waiting for a ruling from the court, said that if the evidence “comes in anyway” he was
“just gonna use it in [his] defense.” At no time did he state any specific objection to the
evidence, and he never requested a hearing under Evidence Code section 403 to establish
preliminary facts necessary to the admissibility of the other burglaries.
Due to the similarities in the various burglaries—and especially the fact that all of
the stolen items were found in Lena’s car and truck—the trial court ruled the evidence
was admissible for the purpose of intent, and said it would also consider admitting it for
identity, motive, common plan, and the other issues identified in Evidence Code section
1101, subdivision (b). Lena then changed his tack and, instead of arguing against
admission of the uncharged crimes, said, “I say let it all in.” After Lena confirmed he
wanted evidence of all the uncharged burglaries to come in, the court asked him if he
wanted them limited to the categories discussed, or if he also agreed to have them
admitted for the purpose of establishing identity. Lena stated he “totally object[ed]” to
having them admitted for identity, arguing that “there is absolutely no evidence
whatsoever that I did any of them.” In response, the court ruled that it would not allow
them in for purposes of identity. Lena confirmed with the court that he would be
permitted to use the “evidence that they planted from those burglaries” to support his own
theory of the case.
3. Lena’s Connection to the Uncharged Burglaries Was Established as a
Preliminary Fact
Evidence of a defendant’s prior uncharged crimes can be admitted under Evidence
Code section 1101 subdivision (b) to prove intent, motive, and common plan. This
evidence can only be introduced if the prosecution establishes, by a preponderance of the
10
evidence, that the defendant is connected to the crime. (People v. Carpenter (1997) 15
Cal. 4th 312, 380–382 (Carpenter).) The defendant’s connection to the crime is a
preliminary factual issue that must be decided before the evidence can be admitted.
(People v. Lucas (2014) 60 Cal. 4th 153, 218; People v. Garelick (2008) 161 Cal. App. 4th
1107, 1115; People v. Simon (1986) 184 Cal. App. 3d 125, 129–131.)
For an uncharged offense to be admissible for the purpose of proving intent, only a
sufficient similarity to support an inference that the defendant probably had the same
intent in both instances is required. (People v. Ewoldt (1994) 7 Cal. 4th 380, 402.) To
prove a common plan, the acts must, beyond simply having the same result, share
common features which can be explained as the result of a general plan of which the
charged crime was a part. (Ibid.) In this case, the uncharged burglaries supported an
inference that Lena specialized in stealing passports and firearms. That he had a
collection of stolen guns, all stolen in Bay Area burglaries, suggested he knew they were
stolen and increased the likelihood he was the burglar who stole them. And, too,
passports were stolen from the Lake home, near Maassen’s, just days before the Maassen
burglary. The pattern of the uncharged burglaries tended to show he intended to steal
Maassen’s passport, his motive was to steal a passport, and that the Maassen burglary
was one instance in an ongoing common plan to illegally acquire passports and firearms.
It further suggests strongly that he knew about the guns found in his vehicles, thus
supporting the felon in possession charge. The evidence was relevant to the issues of
intent, motive and common plan in the burglary charge and knowledge in the possession
charge, and its admission was limited accordingly. Finally, the trial court’s warning to
the prosecutor that she should avoid putting on cumulative evidence shows the court was
willing to exclude some evidence under a prejudice versus probative value balancing
analysis (Evid. Code, § 352) had it not been for Lena’s insistence that the court “let it all
in.” (See People v. Leon (2015) 61 Cal. 4th 569, 599 (Leon); Austin B. v. Escondido
Union School Dist. (2007) 149 Cal. App. 4th 860, 885.) We see no abuse of discretion in
the trial court’s determination of relevance.
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But according to Lena’s analysis, the People were required to establish as a
preliminary fact, before the evidence could be admitted (see Evid. Code, § 403), that he
was the burglar in the uncharged crimes, and on that point he claims there was
insufficient evidence to admit the other burglaries. Possession of recently stolen goods
not only justifies an inference that the possessor received them knowing they were stolen,
but also tends to show the possessor’s guilt of the burglary of those items if the possessor
fails to show that he received the items honestly. (People v. MacFarland (1962) 58
Cal. 2d 748, 754.) Lena argues the burglaries were not recent enough to support an
inference that he was the actual burglar, pointing out that the published cases generally
applied that rule only where the possession was closer in time to the burglary, asserting
the burglaries in this case occurred up to three or more years before he was found in
possession of the stolen guns and passports. This is factually incorrect, because only one
burglary preceded the charged offenses by more than one year, while the others preceded
Lena’s apprehension by only months.
More fundamentally, we disagree with Lena’s analysis and believe the
prosecutor’s offer of proof that the stolen guns were found in Lena’s vehicles was enough
to show his “connection” to the burglaries. (People v. Lucas, supra, 60 Cal.4th at p. 218;
People v. Garelick, supra, 161 Cal.App.4th at p. 1115.) It was up to the jury to decide
whether he was, in fact, the burglar (Leon, supra, 61 Cal.4th at p. 599) by a
preponderance of the evidence (Carpenter, supra, 15 Cal.4th at pp. 380–382; People v.
Simon, supra, 184 Cal.App.3d at pp. 132–134; People v. Donnell (1975) 52 Cal. App. 3d
762, 777). Establishing defendant’s “connection” to the burglaries did not require proof
sufficient to sustain his conviction as the burglar. “The threshold admissibility of
uncharged crimes evidence does not require proof that the defendant was the perpetrator
in both sets of offenses. As [the Supreme Court] explained in People v. Soper (2009) 45
Cal. 4th 759, 778, ‘a fact finder properly may consider [section 1101, subdivision. (b)]
evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that
the defendant committed both sets of crimes [citation], and further (2) . . . “the factual
similarities . . . tend to demonstrate that in each instance the perpetrator harbored” the
12
requisite intent. [Citation.] There is no requirement that it must be conceded, or a court
must be able to assume, that the defendant was the perpetrator in both sets of offenses.’ ”
(Leon, at p. 599; accord, People v. Rogers (2013) 57 Cal. 4th 296, 330–331; People v.
Foster (2010) 50 Cal. 4th 1301, 1332.)
Lena relies on cases dealing with sufficiency of the evidence to support a
conviction, not cases discussing the showing required for admissibility (see People v.
MacFarland, supra, 58 Cal.2d at pp. 752, 754; People v. Vann (1974) 12 Cal. 3d 220, 224
[receiving stolen property]), thereby failing to recognize the difference between the two
standards, as discussed in Leon, supra, 61 Cal.4th at page 599. His analysis is
correspondingly flawed.
Moreover, the court’s evidentiary ruling was based on the totality of the evidence,
not merely the possession of the stolen goods. Although Lena claims the crimes are not
similar, he does not address or refute the similarities the People identified and the court
accepted. The court found the burglaries were all residential and mostly committed
during the day, only one of which was committed during the early evening. All of the
houses had multiple levels and were secluded in some way—either by relative location,
or only accessible by trails, smaller lanes, or winding roads. Access into the houses was
gained through the rear by breaking windows or through unlocked doors and most were
ransacked. In each of the cases, large items, most jewelry, and computers or electronics
were completely ignored in favor of taking passports and firearms. Only in one of the six
total burglaries was jewelry taken, but unlike the others, the jewelry taken was small and
in plain sight.
We agree with the People there was sufficient evidence to permit the burglaries to
go to the jury because Lena’s possession of their fruits showed a connection to the
uncharged burglaries as a preliminary fact and there was sufficient similarity between the
charged and uncharged burglaries for the jury to infer he was the burglar in each case.
Thus, the uncharged crimes were relevant to prove intent, motive, and common plan in
the charged burglary. We construe the court’s summary of the similarities to be both a
ruling on the motion in limine under section 1101, subdivision (b) and a preliminary fact-
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finding of sufficient indicia of identity to allow the jury to find he was the burglar in the
uncharged crimes by a preponderance of the evidence. (See Carpenter, supra, 15 Cal.4th
at pp. 380–383; CALCRIM No. 375.) The jury was instructed on the necessity of making
this preliminary fact-finding. The trial court’s evidentiary ruling was not an abuse of
discretion and must be upheld.
4. Lena Forfeited His Challenge to the Admission of the Burglaries
Lena now argues, for the first time, that evidence of the uncharged burglaries
should have been excluded under Evidence Code section 352. We need not address that
issue on the merits because he forfeited it by failing to object on this ground in the trial
court and by inviting admission of the evidence he now finds objectionable, fully aware
when he did so that he might have grounds to object. (Evid. Code, § 353.)
Although Lena claimed the uncharged crimes evidence was based on untruths, he
took the position that all of the evidence should be admitted anyway. The court
suggested to the People that they consider limiting the evidence, otherwise Lena might
have an objection, but Lena interrupted and demanded that all the evidence be admitted:
“THE COURT: What I’m prepared to do, at this point, is the evidence of
those burglaries may come in, including Trembly and Hale, however, what
I am going to suggest to the People is that you think about the ones you
want in most and put those in first because, at some point, Mr. Lena may
have an argument that putting in more is cumulative and—”
“THE DEFENDANT: No, no, no.”
“THE COURT: You want them all of them in? [sic]”
“THE DEFENDANT: Yeah.”
When the court attempted to make sense of Lena’s contradictory statements and
asked him whether he wanted to limit the admission in his favor, Lena only asked that the
burglaries not be admitted to prove identity. The court acceded to this limitation and so
instructed the jury. Beyond that, Lena wanted the evidence to be admitted carte blanche.
In light of this exchange, we conclude Lena clearly forfeited his right to raise on appeal
14
any Evidence Code section 352 objection to the admission of the uncharged crimes
evidence.
Having chosen to represent himself, as he had a right to do, Lena’s tactical choices
as counsel for himself are no less binding on him than an attorney’s choices would have
been. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984–985; Kobayashi v. Superior
Court (2009) 175 Cal. App. 4th 536, 543.) Lena himself elected to have all of the
uncharged burglaries come into evidence, despite the obvious potential for prejudice,
expressing what must be regarded as a tactical reason. Even if his tactical maneuver was
of questionable wisdom, he nevertheless was pursuing what he considered to be a
strategic defense objective. Whether he was aware that his actions might bar a later
challenge on appeal is irrelevant. A competent lawyer would have known that, and he is
held to the same standard.
5. Any Error Committed Was Harmless
Even if we were to decide that Lena did not waive his Evidence Code section 352
challenge, we still have no occasion to address the merits of the claim. It is immaterial
whether the uncharged burglaries were improperly admitted because any resulting error
was harmless.
Lena’s defense to the charges against him in this case was based on wild,
contradictory, paranoid claims that were at odds with objectively proved fact. He
believed that a grand conspiracy between the prosecutor’s office and law enforcement in
California and in Canada had been orchestrated for the sole purpose of convicting him.
His conspiracy theory involved items stolen from a number of Bay Area residences
within a short time frame from one another, and he insisted those items had somehow
fallen into the hands of California and Canadian officers, who then planted them in his
vehicles after he was already in a Canadian prison. This testimony is even more
improbable considering the items stolen from the Collins home were discovered in both
of Lena’s vehicles in California and Canada, either suggesting California officers split up
the firearms and shipped some of them to Canada, or Canadian officers came down to
California to retrieve a share of the firearms.
15
Even without the admission of the uncharged crimes, the evidence against Lena
was overwhelming. He did not contest it in any meaningful way, other than by offering a
blanket denial couched in what was quite plainly delusionary confabulation. With
respect to the burglary count, he was caught in possession of the only item stolen in the
Maassen burglary within a few hours, at most, of the burglary, before the burglar would
have had a chance to dispose of the property. He was also found in the possession of
multiple firearms at the same time, and his awareness of their presence was amply
demonstrated by the discovery of an additional cache of weapons in his truck in Canada.
To credit Lena’s defense, the jurors would have had to disbelieve the testimony of
virtually every other witness, including police officers from two different countries. We
conclude there was no reasonable probability the jury would have believed his far-fetched
conspiracy theory, whether the uncharged burglaries were admitted or not. This case was
not close. (See People v. Watson (1956) 46 Cal. 2d 818, 836–837.)
Lena further claims the admission of the uncharged burglaries violated his due
process rights, and thus entitled him to review under the Chapman standard. (Chapman
v. California (1967) 386 U.S. 18.) Generally speaking, of course, a violation of a state
evidentiary rule is not a federal constitutional error. (People v. Benavides (2005) 35
Cal. 4th 69, 91.) Even though in some instances an admission of evidence in violation of
section 352 may amount to a due process violation (see People v. Partida (2005) 37
Cal. 4th 428, 439), that is immaterial here because any such error was harmless even
under the Chapman standard. The People’s evidence was so conclusive of Lena’s guilt
and Lena’s defense was so weak that we conclude, beyond a reasonable doubt, the jury
would have returned the same verdict even without the evidence of the uncharged
burglaries.
16
III. DISPOSITION
The judgment is affirmed.
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
17
Trial Court: Marin County Superior Court
Trial Judge: Hon. James T. Chou
Counsel:
Mark David Greenberg under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Supervising Deputy Attorney General, Laurence K.
Sullivan, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General
for Plaintiff and Respondent.
18