People v. Fox CA2/6 ( 2024 )

Filed 10/14/24 P. v. Fox CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B329737
(Super. Ct. No. 19CR11756)
Plaintiff and Respondent, (Santa Barbara County)
v.
CHRISTOPHER ALEXANDER
HUNT FOX,
Defendant and Appellant.
Christopher Alexander Hunt Fox appeals from the
judgment entered after a jury found him guilty of assault with a
deadly weapon (ADW).1 (Pen. Code, § 245, subd. (a)(1).)2 The
jury found true an allegation that he had personally inflicted
great bodily injury (GBI) upon the victim. (§ 12022.7, subd. (a).)
1 Appellant testified that he has two last names – “Hunt”
and “Fox.”
2 Unless otherwise specified, all statutory references are to
the Penal Code.
The trial court sentenced him to prison for five years: two years
for the ADW plus three years for the GBI enhancement.
Appellant contends: (1) the evidence is insufficient to
support the jury’s finding that he had not acted in lawful self-
defense; (2) the trial court erroneously excluded evidence of a
threat made by the victim three days after the ADW; and (3) the
trial court abused its discretion in denying his request for
probation. We affirm.
Facts
The victim, John Shalhoob, testified as follows: He had a
dating relationship with Ashley Sharkey. Appellant was
Sharkey’s former boyfriend and the father of her daughter.
During the evening on December 8, 2019, Shalhoob
accompanied Sharkey to her apartment. When they arrived,
appellant was standing at the doorway to the apartment. He had
come to visit his daughter. Sharkey asked Shalhoob “to talk to
[appellant] about leaving because . . . [appellant] was
intoxicated.”
Appellant and Shalhoob walked to an outdoor patio in the
apartment building. Appellant “jumped up on a wall” and
climbed to the roof above the patio. Shalhoob said to appellant,
“‘What are you doing up there’ . . . ‘Get down from there. It’s not
safe for you up there.’” Shalhoob “was concerned that [appellant]
would fall off the roof.”
Shalhoob climbed onto the roof. He said to appellant:
“‘Hey, I’m up here now. Why don’t we just all get off the roof.
Come on, let’s both of us get off the roof.’” Appellant hit Shalhoob
in the face. Shalhoob “grabbed him by the shirt, and . . . threw
him on the . . . roof pretty good . . . .”
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Appellant agreed to get off the roof. Shalhoob “turned
around to walk off the roof, and [appellant] punched [him] in the
back.” The punch “knocked the air out of [him].” Shalhoob said,
“‘Come on, let’s get off this frickin’ roof.’” He “turned around
again [to walk off the roof], [and appellant] punched [him] again
in the back.”
Shalhoob realized that he had been stabbed. Appellant
stabbed him “a couple more times” with a knife. Shalhoob “knew
[he] had to fight for [his] life.” He grabbed the knife with his
right hand. He “was holding on [to the knife] for dear life” to stop
appellant from stabbing him. The knife cut off the tip of his
middle finger.
Sharkey climbed onto the roof. With her help, Shalhoob
subdued appellant.
Shalhoob was transported to a hospital emergency room.
The doctor who treated him testified, “[T]he patient presented
acutely [with] multiple stab wounds involving his chest and
abdomen.” The doctor opined that his injuries were “life
threatening.”
Appellant testified that he had stabbed Shalhoob in self-
defense. Shalhoob started the fight by punching him in the face.
Shalhoob put appellant in a “headlock” until he “blacked out.”
When appellant awoke, he was lying on his back. He tried to get
up, but Shalhoob put him in a “choke hold.” Appellant could not
breathe. He “passed out for a second time.”
When appellant awoke, “[Shalhoob] was laughing. And he
was saying that this was his city and that he was going to fuck
me up real bad and that I was in for it.” Shalhoob again put
appellant in a choke hold and forced him to the edge of the roof.
Shalhoob said: “‘If you fall, nobody’s going to believe you. And
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you’ll probably just wind up in a wheelchair’ . . . .” Appellant “felt
he was going to throw me off [the roof] and I was going to die.”
Appellant took out a pocketknife and started stabbing Shalhoob.
“I just threw my knife around, . . . I wasn't trying to kill him. I
just wanted to get him off of me.”
Sufficiency of the Evidence
Appellant claims the evidence is insufficient to support the
jury’s finding that he had not acted in lawful self-defense.
“Lawful self-defense requires (1) that defendant reasonably
believed he was in imminent danger; (2) that the immediate use
of defensive force was necessary to defend against that danger;
and (3) that defendant used no more force than necessary to
defend against the danger.” (People v. Dryden (2021) 60
Cal.App.5th 1007, 1025.) “[T]he ordinary self-defense
doctrine . . . may not be invoked by a defendant who, through his
own wrongful conduct (e.g., the initiation of a physical
assault . . .), has created circumstances under which his
adversary's attack or pursuit is legally justified.” (In re Christian
S. (1994) 7 Cal.4th 768, 773, fn. 1.) “Only when the victim resorts
to unlawful force does the defendant-aggressor regain the right of
self-defense.” (People v. Frandsen (2011) 196 Cal.App.4th 266,
273.) The jury was instructed, “The People have the burden of
proving beyond a reasonable doubt that the defendant did not act
in lawful self-defense.”
Appellant asserts that he “acted in lawful self-defense and
used only the force necessary to repel the attack from Shalhoob.”
He “reasonably believed that he was in imminent danger of being
killed or suffering great bodily injury. [Record citation.]
Therefore, appellant’s use of deadly force to repel Shalhoob’s
attack was justified.”
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“‘Given this court’s limited role on appeal, [appellant] bears
an enormous burden in claiming there was insufficient evidence
to sustain his conviction.’ [Citation.] ‘“The proper test for
determining a claim of insufficiency of evidence in a criminal case
is whether, on the entire record, a rational trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.] On
appeal, we must view the evidence in the light most favorable to
the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence. [Citation.] [¶] Although we must ensure the evidence
is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on
which that determination depends. [Citation.] Thus, if the
verdict is supported by substantial evidence, we must accord due
deference to the trier of fact and not substitute our evaluation of
a witness's credibility for that of the fact finder.”’” (People v.
Morales (2021) 69 Cal.App.5th 978, 988.)
Here, the jury must have believed Shalhoob’s version of
events and disbelieved appellant’s version. “‘“We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]” [Citation.] A reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support’” the jury’s verdict.’” (People v. Penunuri (2018) 5 Cal.5th
126, 142.) Shalhoob’s testimony constitutes sufficient substantial
evidence to support the jury’s finding that appellant did not act in
lawful self-defense. (In re Gustavo M. (1989) 214 Cal.App.3d
1485, 1497 [“the evidence of a single witness is sufficient for proof
of any fact”].)
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Trial Court’s Exclusion of Alleged Threat
Made by Shalhoob to Sharkey after the Stabbing
Appellant’s mother, Gloria Sickmen, reported to the police
that Sharkey had telephoned her three days after the stabbing.
Sharkey said Shalhoob had threatened to kill appellant, Sharkey,
and Sharkey’s daughter. Law enforcement officials did not
investigate Sickmen’s report of Shalhoob’s threat.
Prior to opening statement, appellant’s counsel asked the
trial court to permit her to question the investigating officers
about Shalhoob’s threat. Counsel said that evidence of the threat
would be offered “not for the truth of the matter, but simply to
ask the investigating officers, ‘You received information about a
threat towards the witnesses in this case from Mr. Shalhoob, and
you did nothing to follow-up.’ That goes to their credibility.”
The trial court excluded the evidence under Evidence Code
section 352 because “it’s just going to confuse the jury, it’s going
to take lots of additional time, and it has very minimal relevance
in terms of whether the officers properly conducted their
investigation.” Furthermore, the court said the evidence is
“double, triple hearsay Shalhoob to Sharkey to Sickmen to [the
police], . . . that’s just not admissible in that form.”
Sharkey did not testify. During a break in the testimony of
District Attorney Investigator Eric Davis, appellant’s counsel
asked the trial court “to reconsider its ruling on allowing me to
inquire on the investigation about [Shalhoob’s] threat that was
reported to the police department . . . , and [for which there] was
no follow-up.” The court replied: “It comes to us in like triple
hearsay, the claim that there was some sort of threat made, and
it’s not even a threat involving witness dissuasion. It’s just – it’s
sort of a vague threat.” “I think [it’s] . . . substantially more
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prejudicial than probative under [Evidence Code section] 352. [¶]
Because you’re not really seeking to introduce the threat. If you
were seeking to do that, we could take testimony from witnesses
and determine whether or not it would be independently
admissible. What you’re trying to do is to get that threat before
the jury using the vehicle of ‘these officers didn’t sufficiently
investigate the crime.’ [¶] So my ruling stands.”
Appellant subsequently filed a document entitled,
“DEFENDANT’S REQUEST TO PRESENT EVIDENCE OF
THREATS AGAINST WITNESSES.” Appellant requested that
the court again reconsider its ruling on the admissibility of
Shalhoob’s threat to Sharkey. Appellant attached to the request
a police report stating that Shalhoob’s threat involved an attempt
to dissuade Sharkey from testifying: “Sharkey[] called Sickmen
and told her John Shalhoob had threatened to kill her,
[appellant] (while he is in jail), and their baby if Sharkey testified
to what occurred on 12/9/19 between [appellant] and Shalhoob.
Sharkey was scared.”
In the request appellant’s counsel argued: “The defense
seeks to introduce this evidence not for the truth of the matter
but to inquire of the thoroughness of the investigation. The
defense would introduce this evidence through Santa Barbara
Police Officer John Duffy, who documented this report . . . and
Investigator Eric Davis of the Santa Barbara District Attorney’s
Office who will confirm that the agency did not follow up.” In his
appellate reply brief appellant asserts that “this form of cross-
examination of [Duffy and Davis] was the only avenue available
to elicit [the threat] evidence” since Sharkey “did not testify at
trial.”
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The trial court did not rule on the request for
reconsideration of its prior evidentiary ruling. Appellant did not
object to the lack of a ruling. The record does not disclose
whether the trial court read Officer Duffy’s report.
Appellant contends, “[T]he trial court improperly
precluded appellant’s questioning of [District Attorney
Investigator] Davis regarding the lack of follow up investigation
regarding [Shalhoob’s threat to Sharkey].” Appellant explains,
“The highly relevant evidence relating to the lack of follow up
investigation . . . showed the police too quickly jumped to the
conclusion that appellant was the aggressor without completing a
thorough investigation into the incident.”
Evidence Code section 352 provides, “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 of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “On appeal, we apply the abuse of
discretion standard in reviewing a trial court’s ruling on the
admissibility of evidence, including an Evidence Code section 352
objection to evidence. [Citation.] We will reverse a trial court’s
ruling only if the record shows the court acted in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” (People v. Chavez (2018) 22 Cal.App.5th
663, 702.)
The trial court did not abuse its discretion. Evidence of the
threat and lack of “follow-up” by the police was offered to prove
that the police had not thoroughly investigated the case. But
appellant did not explain to the trial court how a police inquiry
into the threat or a more thorough investigation of the case would
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have resulted in the discovery of evidence beneficial to appellant,
i.e., evidence supporting his claim that he had acted in lawful
self-defense. Thus, the lack of “follow-up” by the police had little,
if any, probative value.
If evidence of the threat and lack of “follow-up” by the
police had been admitted to show that the police had not
thoroughly investigated the case, the prosecutor probably would
have called the officers involved in the case to testify why they
had not followed up on the threat. The court reasonably
concluded that the injection of this issue into the trial would have
resulted in an undue consumption of time and would have
confused the jury. The court said: “[T]his information [about the
threat] was received days after the incident, and so now [if the
information is admitted] we’re going [to] get into a question of
whether or not a call was made, what was the nature of the call,
who made it, and really the focus has got to be on . . . the date [of
the offense] in question, and what happened. Was it self-defense,
was it not self-defense, not so much whether they followed up on
[Sickmen’s] claim [of a threat made by Shalhoob to Sharkey].”
We reject appellant’s claim that the exclusion of the
evidence “deprived [him] of his constitutional right to present a
defense.” “As a general matter, the ordinary rules of evidence do
not impermissibly infringe on the accused's right to present a
defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.)
In any event, the exclusion of the evidence did not result in
a miscarriage of justice. “[A] ‘miscarriage of justice’ should be
declared only when the court, ‘after an examination of the entire
cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing
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party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
It is not reasonably probable that the result would have
been different had evidence of the threat and lack of “follow-up”
by the police been admitted for the purpose of showing that the
police had not thoroughly investigated the stabbing. The jury’s
verdict was based on its evaluation of the live testimony of
appellant and Shalhoob. Appellant has not shown how the lack
of “follow-up” by the police into a threat made three days after
the stabbing would have assisted him in proving that he had
stabbed appellant in self-defense.
Trial Court’s Denial of Probation
Appellant contends the trial court abused its discretion in
denying his request for probation. The probation officer observed
that appellant is “presumptively ineligible for a grant of
probation pursuant to [section] 1203(e)(2).” This section provides
that, “[e]xcept in unusual cases in which the interest of justice
would best be served if the person is granted probation,”
probation shall not be granted to a person “who used . . . a deadly
weapon upon a human being.” (Ibid.)
In support of a grant of probation, the probation officer
noted that appellant’s “prior performance on probation was
satisfactory” and that “[i]mprisonment will likely have a negative
effect on [him].” Moreover, appellant “appears to have addressed
his primary risk factor, impaired judgment due to alcohol
intoxication, by reportedly abstaining from alcohol consumption,
residing at sober living homes, and participating in therapy.”
In support of the denial of probation, the probation officer
stated: “Shalhoob suffered lacerations to his face and hand and
puncture wounds to his neck, chest and back.” His injuries
10
included “lacerated lungs, as well as a gruesome facial laceration.
He endured hours of emergency surgery and a 19-day
hospitalization. He also had to endure subsequent facial plastic
surgery and eye surgery in an attempt to correct the damage
[appellant] inflicted on him. As a result of his hospitalization and
related surgeries, the victim suffered great monetary losses.” At
the sentencing hearing the prosecutor said Shalhoob had been
stabbed in the area of his eye. The wound “was almost two
inches deep.”
According to the probation report, an aggravating factor
was that appellant’s “violent conduct . . . indicates a serious
danger to society.” A mitigating factor was that he “has an
insignificant record of criminal conduct.”
The probation officer concluded that appellant “is a
marginal candidate for a grant of probation.” But the officer said,
“The Probation Department believes [appellant] should be
afforded an opportunity on probation prior to the execution of a
state prison commitment.”
“A sentencing court enjoys broad discretion in determining
whether to grant or deny probation. A defendant who is denied
probation bears a heavy burden to show the trial court has
abused its discretion. [Citations.] Furthermore, ‘a denial of
probation after consideration of the application on its merits is
almost invariably upheld. [Citations.]’ [Citation.]” (People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1157.) “To establish
abuse, the defendant must show that, under the circumstances,
the denial of probation was arbitrary or capricious.” (People v.
Lai (2006) 138 Cal.App.4th 1227, 1257.)
Appellant contends, “The trial court’s failure to properly
consider the individualized circumstances in mitigation
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amounted to an abuse of discretion.” But the trial court carefully
considered the mitigating circumstances. The court said:
“[Appellant] has minimal criminal history. This [the present
crime] seems to be out of character, there’s no question about
that.” “[T]here’s some mitigation in the sense that . . . he was
under the influence of alcohol at the time it occurred. I don’t see
that he’s a serious public safety risk moving forward.” Appellant
“has some things going for him . . . based on the traditional
criteria, no criminal history, he’s older in the sense that he’s in
his 30s, and again hasn’t demonstrated a violent character. He’s
got character letters that are helpful . . . .”
Nevertheless, because of the serious nature of the crime
and the great bodily injury inflicted upon Shalhoob, the trial
court believed that probation was unwarranted. The court
explained: “I just don't see it as a probation case. I think that
would be the wrong message to send both to [appellant] and to
the community that this kind of serious offense is going to
happen, jury’s going to hear the evidence, they’re going to find
the defendant guilty of assault with a deadly weapon with a
knife, multiple stab wounds, and then we’re going to just say,
we’re going to put him on probation.” “[T]his is almost as serious
a kind of case as you can get, because . . . had there not been
immediate treatment for [Shalhoob], . . . it could have been a
murder.”
The probation officer opined that, “when [the circumstances
relating to appellant] are all considered together, they appear to
make a good basis for a probation grant.” But the officer
acknowledged that “the circumstances of the instant offense and
the impact they have had on the victim rise to the level of
justifying a state prison commitment.”
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The probation officer continued, “This is a very difficult
case to evaluate. Given the extent of the victim’s injuries and the
financial impact they have had on him, the defendant appears to
be deserving of a state prison commitment. For that reason, a
state prison recommendation was strongly considered. On the
other hand, the instant offense appears to have been an isolated
incident and a state prison commitment may be
counterproductive.”
Thus, the trial court had a reasonable basis for denying
probation. It did not act irrationally, arbitrarily, or capriciously.
It was not required to follow the probation department’s
recommendation that appellant “be afforded an opportunity on
probation prior to the execution of a state prison commitment.”
Appellant has therefore failed to carry his heavy burden of
showing that the trial court abused its discretion in denying
probation.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Stephanie C. Brenan, Supervising
Deputy Attorney General, Gabriel Bradley, Deputy Attorney
General, for Plaintiff and Respondent.