P. v. Knox

Filed 3/13/07 P. v. Knox CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KEITH ANTWON KNOX,
Defendant and Appellant.
D049600
(San Bernardino County Super.
Ct. No. FSB046053)
APPEAL from a judgment of the Superior Court of San Diego County, J. Michael
Welch, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Keith Antwon Knox was charged together with codefendants James Knox (James)
and Mark Booker with three counts of attempted murder (Pen. Code,1 § 187, subd. (a)).
With regard to each count, Knox was also alleged to have discharged a handgun which
proximately caused great bodily injury to each victim (§ 12022.53, subd. (d)). A jury
1 All statutory references are to the Penal Code unless otherwise specified.

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found Knox guilty of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd.
(a)), a lesser crime as to counts 1 and 2, and found him not guilty of the count 3 offense.2
The trial court sentenced Knox to a total prison term of six years, six months,
consisting of the upper term of five years, six months on count 1 plus a consecutive one-
year middle term on count 2.
Knox appeals, contending his convictions must be reversed because the trial court
prejudicially erred when it required he be shackled during his jury trial, when it refused to
allow him to introduce relevant character evidence for violence of the major prosecuting
witness/victim, and when it refused to allow him to impeach that same witness with
evidence of a recent uncharged stabbing. Knox also claims the court's imposition of the
upper term for count 1 violated his federal constitutional rights to proof beyond a
reasonable doubt and jury trial under Blakely v. Washington (2004) 542 U.S. 296
(Blakely) and United States v. Booker (2005) 543 U.S. 220 (Booker) because the
aggravating factors were not found true by a jury.
During the pendency of this appeal, the United States Supreme Court in
Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [2007 WL 135687]
(Cunningham) determined that California's Determinate Sentencing Law (DSL), which
permits a court to impose an upper term sentence based on aggravating facts not found
2 The jury found Booker not guilty of all greater and lesser charges and acquitted
James of all such charges in count 3. Although the jurors found James not guilty of the
attempted murder charges in counts 1 and 2, they could not reach verdicts with regard to
the lesser offenses charged against James in those counts.

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true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings
in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296,
and Booker, supra, 543 U.S. 220.3 Although we find no prejudicial error to reverse
Knox's convictions, we reverse his sentence and remand for resentencing in light of
Cunningham.
FACTUAL BACKGROUND
Because Knox does not challenge the sufficiency of the evidence to support his
convictions, we merely summarize the facts presented at trial as background for our
discussions. As of September 18, 2004, Crystal Mitchell had been dating Knox's brother
James for several years, and had lived with him for months at a time. That evening when
Mitchell went to the Route 66 carnival with her sisters, Ladora Broomfield (Ladora) and
Latia Broomfield (Latia), and her friend Joycelyn Jeter, Mitchell was approached by a
woman named Makia (also spelled Makiya), who told Mitchell that she was dating James
and was the mother of his baby. When Mitchell became angry, Makia asked her if she
wanted to fight.
Mitchell and the others followed Makia to a nearby park where James arrived
shortly in his car with Booker and a baby. When James got out of the car holding the
baby, Mitchell began yelling, confronting James about the baby. James handed the baby
to Makia and continued to argue with Mitchell for 15 to 20 minutes. At some point,
3 We asked the parties to address the effect of Cunningham on Knox's upper term
sentence in this case at the time of oral argument and permitted the filing of supplemental
letter briefs on the issue.

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Mitchell got into James's car and took his keys and an envelope containing registration
papers from his glove compartment. In the meantime, Knox had driven up to the area
with his girlfriend Antoinette and another girl who claimed to be James's current
girlfriend. Knox approached Mitchell, telling her to give James his keys back. Mitchell
refused and continued arguing with James. James then left the park in Knox's car with
Knox and the third girlfriend.
Several minutes later, Knox returned to the park with a spare key that he gave to
Booker who had to drive James's car forward over a grass hill to drive away because
Mitchell stood behind the car so he could not back up. Mitchell and her sister Ladora's
attempt to catch up with the car failed. When Mitchell, still angry, threw a purse at
Knox's car, he stopped, backed up and pulled the car toward her, driving one tire up onto
the curb before backing away and leaving the area.
The next morning, September 19, 2004, Booker went to Mitchell's house at 9th
and G Streets in San Bernardino where she lived with her mother, sisters, and two
brothers, Jonathan Broomfield (Jonathan) and Hayward Broomfield (Hayward). That
morning, Mitchell's cousin John Claiborne and friend Jeter were also at the house when
Booker knocked and asked for Mitchell. Booker asked Mitchell for James's papers, but
she refused to give them back.
Later that afternoon, at about 2:00 p.m., Booker returned to Mitchell's home, but
stood outside the front gate near the sidewalk when he asked to speak with her. As she
approached the gate, James walked up and stood near Booker while other family
members followed Mitchell outside. James and Booker asked Mitchell to return the

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paperwork for James's car, but she refused. When the argument between James and
Mitchell became heated, Claiborne, Jonathan and Hayward walked toward the front gate.
When Hayward grabbed Mitchell's shoulder and told her to go back inside the house,
Claiborne and Jonathan stepped in front of her and confronted James and Booker.
Jonathan watched as Claiborne's argument with Booker escalated and it looked like they
were going to fight. Jonathan saw James, who appeared to be scared, pull his shirt up,
display a gun in his waistband, and then pull it out and fire a single shot which hit
Claiborne in the shoulder.
Someone then yelled that Knox, who was standing near a brick wall on the side of
the property outside the gate, had a gun. When Knox began shooting into the yard with a
semi-automatic gun, everyone except Ladora ran or hit the ground. Mitchell was hit in
her buttocks and fell as she tried to go up the porch stairs and into the house. Ladora was
shot in the head and fell on the grass near a tree. Jeter saw Knox fire the shots that struck
Ladora and Mitchell. Jonathan saw Knox shooting at everyone and estimated he fired
seven to nine times. After the shooting, Knox, James and Booker ran away from the gate
area in the direction of the brick wall.
Having heard eight or nine shots from his apartment, which was behind Mitchell's
house, Christopher Blanton, another brother of Mitchell's, went to Mitchell's house when
he heard screaming coming from that direction. When he got there, he grabbed a gun
kept in the kitchen, and ran to the front porch where he saw Mitchell lying on the front
steps and Ladora lying on the grass. Blanton went back in the house with the gun when
their mother told him to put it away.

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Several independent witnesses testified at trial about what they saw near the time
of the shooting. A man driving down the street saw several men arguing in front of
Mitchell's house, when one man in the middle started shooting. The man driving by then
saw three men running away. When the driver returned to the area to see if anyone was
hurt, he saw Mitchell down on the porch steps, a man in the front yard holding his
shoulder and a girl down on the grass. He then saw a man come out of the house trying
to put a clip in a gun.
Another man driving by with his children and grandchildren in the car, saw three
people walk toward Mitchell's house and start arguing with people inside the fence.
When the man heard three or four gunshots, he reached for the children and told them to
get down. The man thought the person with the gun was standing right in front of the
gate.
An off-duty deputy sheriff and his girlfriend stopped at the red light at 9th and G
Streets that day, heard five or six gunshots as the light turned green. Pulling forward
slowly, the deputy saw three Black males, standing on the sidewalk at the corner with
another group of individuals in front of them, start running down a street and then
through an alley. The deputy followed the three men in his car and then saw a black
Honda with three Black men in it pull quickly out of the alley and into traffic. He then
followed the Honda until he lost sight of it.
Police officers called to Mitchell's home that day found 10 bullet casings from a
.22 caliber gun, including some near the brick wall outside the home. Forensic testing
revealed that all 10 casings had been fired from the same gun. Officers also found a

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Ruger nine-millimeter, semi-automatic handgun and a half-loaded magazine in the
Mitchell house kitchen and two live rounds of ammunition, consistent with a large caliber
rifle, in Jonathan's pants pocket, which he claimed he had found while helping a friend
clean the backyard.
Claiborne, Mitchell and Ladora were taken to hospitals after the shooting.
Claiborne suffered a gunshot wound above his left armpit, Mitchell suffered abrasions
near her mouth and a shot in her buttocks, and Ladora suffered extensive head injuries,
which left her paralyzed on her right side. Her mother noted that Ladora cannot see out
of her right eye, cannot speak and is confined to a wheelchair.
The Defense Case
Various police officers were called in the defense case to testify about Claiborne's
statement made at the hospital after the shooting that Knox, not James, had shot him, and
that Knox's mother, Tina Webb, had telephoned the police the same day as the shooting
about some threats being made to her family by someone from Mitchell's family.
Knox's mother then testified in the defense case. She recalled that Mitchell had
called her and "cussed" her out for not telling her that James had another baby on the
Saturday before the shooting. Mitchell then came by her house the next morning, cussed
at her some more, picked up a crate from the front porch and threw it through her living
room window before running back to a waiting car and driving off. About five minutes
later, Mitchell called Webb and said, "Bitch, this is not over. I am coming back. When I
come back, you going to regret it. I am bringing other people and all sorts of things [are]

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going to happen." Webb called the police about the matter and also called Knox shortly
before the shooting and told him what Mitchell had done and said.
None of the defendants testified in their own defense. In closing, Knox's counsel
argued that Knox was misidentified as the shooter and, in the alternative, that he had fired
in self defense because of Mitchell's and her family's aggression, which included one of
her brothers running out of the house with a gun pointed toward James and Booker.
DISCUSSION
I
SHACKLING
Before the jury panel was brought in for voir dire, the court noted for the record
that it had talked with counsel about the issues of where the three defendants would be
seated during trial and whether they would have leg shackles or irons on them. The court
indicated it was in favor of "keeping the leg shackles on." As reasons for doing so, the
trial judge stated:
"[A]s I look around the physical layout of the courtroom, it's a small
courtroom. It's easy to move around and about. This is certainly a
crime involving an allegation of some substantial violence. There
are going to be a number of witnesses in the courtroom. [¶] The
deputy's indicated to me that because of staffing issues as it relates to
the number of people that can actually be in attendance during the
course of the trial for staff security reasons, they were at a bare
bones minimum, especially in view of the fact that there are now two
other trials on this floor involving high-profile kind of cases that
involve extra security, and yet another case going to start tomorrow
in the same category. [¶] [B]ased upon those reasons . . . I would
allow the sheriff to have leg shackles on the defendants, but not on
their arms, et cetera. . . . [¶] Another thing has also occurred . . . as
we set up the configuration of counsel and the clients around counsel
table for the course of the trial. It's very difficult to seat, in

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effect, . . . seven people to eight people at counsel table . . . so that
the defendants are going to have to sit back, in order that they be
able to communicate with their counsel, in such a way, it seems to
me, that their legs will be exposed. And the jurors would have the
opportunity to see the fact that they are wearing leg irons. [¶] It's my
intent that when the jury comes up, to apprise [them] of that fact. . . .
But the fact that they are in custody and the fact that they do have
those on them is not . . . a piece of evidence, is not something that
the jurors are to consider as evidence against them during the course
of the trial, that it's merely done in view of the fact that the
defendants are in custody. They've been unable to make bail, that
there is more than one defendant, and court security reasons . . .
force me into a position of doing that. And I want to advise the
jurors of that."
Knox's counsel objected to use of the leg irons based on their prejudicial nature
and Knox's right to a fair trial. Although the court appreciated counsel's concern, it
thought that mentioning it to the jurors at the time of voir dire, telling them such could
not be considered for any purpose, and getting their promises that they would not
consider such fact would prevent any prejudice. The court also stated it would admonish
the jury that "wearing leg shackles does not mean that they're more likely guilty or more
than likely more violent than an individual defendant who might not wear such leg irons
during the course of the trial."
Although the court further noted it did not intend to deny the defendants a fair
trial, it thought it had to "balance in some fashion the needs of security for the
defendants, for the other participants of the trial, for the court, and for the courtroom
staff."
During voir dire, the court told the prospective jurors that during the course of
trial, the defendants would be seated with shackles around their legs. "And that's because

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in trials with more than one individual that is in custody, we have a rule that they have
shackles on them. [¶] The fact that they are in shackles, the fact that they're in custody
cannot be used by you as evidence of their guilt. That's one of those things that you can't
consider at all. [I]n other words, it's not evidence. It's not being produced. It's not been
seen by a witness. It's not been testified to. And those are the things that you would
consider evidence in the case and not their custodial status and not the fact that they have
shackles on their legs. That cannot be considered by you." The court also explained that
once a prospective juror from the panel was seated in the jury box, he or she would be
asked whether any of these facts would affect his or her ability to be fair.
At the conclusion of the evidence, the court included in its instructions to the
jurors a reminder that "[t]he fact that physical restraints have been placed on a defendant
must not be considered by you for any purpose. They are not evidence of guilt or not to
be considered by you as they are more likely to be guilty or not guilty. You must not
speculate as to why restraints have been used. Disregard this matter entirely."
On appeal, Knox contends the trial court prejudicially abused its discretion when it
improperly and unnecessarily visibly shackled Knox throughout the course of his jury
trial over his trial counsel's objections. We conclude there was no prejudicial abuse of
discretion.
In Deck v. Missouri (2005) 544 U.S. 622 (Deck), the United States Supreme Court
held that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints
visible to the jury absent a trial court determination, in the exercise of its discretion, that
they are justified by a state interest specific to a particular trial." (Id. at p. 629.) The high

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court explained that "courts cannot routinely place defendants in shackles or other
physical restraints visible to the jury. . . . The constitutional requirement, however, is not
absolute. It permits a judge, in the exercise of his or her discretion, to take account of
special circumstances, including security concerns, that may call for shackling." (Id. at p.
633.) The Supreme Court recognized the need to restrain dangerous defendants to
prevent courtroom attacks or the need to give trial courts latitude in making
individualized security determinations. (Id. at p. 632.) It advised that such
determinations must be case specific: "that is to say, it should reflect particular concerns,
say, special security needs or escape risks, related to the defendant on trial." (Id. at p.
633.) The court concluded that, "where a court, without adequate justification, orders the
defendant to wear shackles that will be seen by the jury, the defendant need not
demonstrate actual prejudice to make out a due process violation. The State must prove
'beyond a reasonable doubt that the [shackling] error complained of did not contribute to
the verdict obtained.' (Chapman v. California [1967] 386 U.S. 18, 24 [(Chapman)].)"
(Deck, supra, 544 U.S. at p. 635.)
The law in California has long followed similar principles by holding that "a
defendant may be physically restrained at trial only if there is a 'manifest need for such
restraints.' [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 651 (Seaton), quoting
People v. Duran (1976) 16 Cal.3d 282, 291 (Duran).) "Such a ' "[m]anifest need" arises
only upon a showing of unruliness, an announced intention to escape, or "[e]vidence of
any nonconforming conduct or planned nonconforming conduct which disrupts or would
disrupt the judicial process if unrestrained . . . ." ' [Citations.] 'Moreover, "[t]he showing

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of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of
physical restraints in the absence of a record showing of violence or a threat of violence
or other nonconforming conduct will be deemed to constitute an abuse of discretion." '
[Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 841 (Hill).) The decision whether to
shackle a defendant may not be delegated to law enforcement personnel. (Ibid.)
Although the California Supreme Court has not ruled which harmless error standard
applies when a court abuses its discretion and permits a defendant to be shackled in
violation of Duran, the prevailing view is that where the jury saw or knew about the
restraints, the error rises to the level of constitutional error to be tested under Chapman,
supra, 386 U.S. at page 24, which is consistent with the standard under Deck, supra, 544
U.S. at page 635.
Here, although the trial court made a record of its reasons for requiring all the
defendants to wear shackles for trial, such reasons fail to establish any " ' "violence or a
threat of violence or other nonconforming conduct" ' " (People v. Hill, supra, 17 Cal.4th
800, 841) on Knox's part or that of any other defendant. Similar to the situation in
Seaton, supra, 26 Cal.4th 598, the impetus for restraining all defendants appears to have
originated with the sheriff's department. The courtroom deputy had advised the court that
staffing was low due to other trials on the same floor of the courthouse which required
extra security and that he wanted to have physical restraints on the defendants. In finding
the restraints necessary for security, the court considered this low staffing fact along with
the nature of the crimes charged (attempted murder with great bodily injury alleged), the
number of witnesses scheduled to appear, and the small configuration of the courtroom

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with its problems in accommodating multiple defendants and their counsel around the
defense table. However, "[t]he circumstance that defendant was charged with a violent
crime . . . does not establish a sufficient threat of violence or disruption to justify physical
restraints during trial. [Citations.] Nor does the court[room] layout [or the number of
potential witnesses] establish any individualized suspicion that defendant would engage
in nonconforming conduct." (Id. at p. 652.)
Even though we recognize the trial court conducted a hearing on the matter and
appears to have exercised its own discretion regarding the restraints, the record simply
does not show that the court's reasoning for extra security via visible leg restraints was
tied to Knox's or any other defendant's demonstrated nonconforming conduct or potential
nonconforming conduct which would pose a security problem for the court. (See People
v. Mar (2002) 28 Cal.4th 1201, 1218.) Accordingly, we conclude the trial court abused
its discretion in ordering Knox physically restrained during trial.4
This conclusion, however, does not compel reversal. The record makes clear that
any error did not impair Knox's right to a fair trial. Knox did not testify and has not
claimed that he would have done so but for his restraints. In addition to the trial court
properly instructing the jury sua sponte that the restraints should have no bearing on the
determination of Knox's or the other defendants' guilt (see People v. Mar, supra, 28
4 By the court telling the prospective jurors that the shackling was used in all
multiple defendant cases, it also appears the court may have made the decision to use the
physical restraints based on a general policy which is contrary to Duran, supra, 16 Cal.3d
282, which requires the decision be based on an individual case basis. (See People v.
Jackson (1993) 14 Cal.App.4th 1818, 1831.)

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Cal.4th 1201), it also advised the jurors during voir dire about the restraints and
preinstructed them that they could not consider the restraints for any purpose, that the
restraints were not evidence of guilt, and the restraints could not be considered as
evidence Knox or the other defendants were more likely to be guilty than not.5 Absent
evidence to the contrary, we presume the jury complied with these admonishments and
instructions made before hearing the evidence and again at the end of trial. (People v.
Roldan (2005) 35 Cal.4th 646, 743; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Further, because the jury acquitted one defendant of all charges, acquitted another
defendant of the greater offenses and hung on the lessers, and certainly gave Knox the
benefit of any doubts by not finding him guilty of all of the charges, we cannot find on
this record that the restraints impacted the jury's deliberations on Knox's guilt or
innocence of the charges. We thus conclude the People have showed " 'beyond a
reasonable doubt that the [shackling] error complained of did not contribute to the
verdict[s] obtained.' " (See Deck, supra, 544 U.S. at p. 635, quoting Chapman, supra,
386 U.S. at p. 24; People v. Anderson (2001) 25 Cal.4th 543, 596 [applying harmless
error analysis].)
5 Although the jury knew about the leg restraints, the record is unclear as to how
visible those restraints were to the jury with Knox and his codefendants seated behind
their respective counsel at the defense table.

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II
CLAIMED EVIDENTIARY ERRORS
Knox filed a pretrial motion to impeach Mitchell with prior assaultive conduct and
with the fact that she had not been criminally charged by the People for such conduct.
Knox requested he be able to cross-examine Mitchell on her inherent bias arising from
the fact that she was not prosecuted for stabbing a woman four times on April 2, 2005,6
which "evinces moral turpitude," and on that specific instance of conduct by Mitchell to
show her character for violence, which he argued was crucial to his claim of self-defense.
At the hearing on in limine matters, the court stated it was not going to allow the
stabbing incident to come into evidence "at this point in time. . . ." The court found the
event irrelevant to what Knox knew before the shooting as it related to his self-defense
defense. However, the court made clear that if something came up at trial, such as
Mitchell saying she was not a violent person, Knox could revisit the issue.
When Knox's counsel then claimed there was a conflict of interest because the
prosecution had the power to decide whether to prosecute Mitchell on that stabbing case
and was prosecuting this case with her as a witness, the court asked for a copy of the
6 The part of the synopsis of the stabbing event written by a San Bernardino Police
Officer relied upon by Knox stated: "The victim and suspect [(referring to Mitchell)]
engaged in a fight in the courtyard of 712 W. 9th. The victim won the first fight. The
suspect fled the scene and returned with a knife and stabbed the victim four times. The
victim was treated at L.L.U.M.C. for four superficial stab wounds. [¶] The suspect was
named by both the victim and witness. She was not located. [¶] The weapon used to stab
the victim was located at 712 W. 9th. I.D. and processed the scene on 9th and took
photographs of the victim's injuries."

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police report and deferred the matter until the next day. At that time, the court found that
based upon its review of the report, the subsequent act by Mitchell "should not be used in
cross-examination of her" unless "there comes a point in time where it becomes relevant
to something else, then you can always address that."
Later, during a break in trial, the court heard further argument on Knox's motion to
impeach Mitchell's credibility with evidence concerning the stabbing incident. Because
the jury would already be hearing evidence about Mitchell's misconduct regarding
throwing a crate at the Knox residence and a purse at Knox's car which occurred before
the shooting, and would not likely get to the truth in a mini-trial on what occurred
subsequent to the shooting because of Mitchell's right to remain silent, the court thought
it should bar the testimony under Evidence Code section 352.
Knox's counsel then asked that the prosecutor grant Mitchell immunity so there
would be no Fifth Amendment problem. The prosecutor explained that even if such were
done, and the testimony about the stabbing came into evidence, it would open up many
other doors regarding bias because he would then seek to admit Mitchell's prior
statements made at the preliminary hearing in this case that show threats were made
against her and her family if she testified at the trial set originally to start before the
April 2, 2005 incident. Looking at the police report, the prosecutor also argued the facts
of the incident were confusing and there was no explanation (other than witness
intimidation) why a "Gold Cutlass driven by a [B]lack male with three [B]lack females
arrived at [Mitchell's] house and dropped off [the] three [B]lack females, [who] then got
in a fight with her."

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Although the court conceded that, if true, Mitchell's subsequent conduct involved
moral turpitude and would be relevant on credibility, it found there were unusual
circumstances in this case because there was no conviction, necessitating a trial within a
trial, and it was questionable whether the alleged stabbing incident was really true.
Therefore, the court found it appropriate to not allow evidence of the incident to come in
under Evidence Code section 352 and denied without prejudice Knox's motion to
impeach Mitchell with the subsequent stabbing incident. No further request to cross-
examine Mitchell on the stabbing was made when she testified at trial.
On appeal, Knox contends the trial court erred when it refused to allow him to
introduce the stabbing incident as evidence of Mitchell's character for violence because it
was relevant to his theory of self-defense and thus denied him his constitutional right to
present a full defense. He also claims the court prejudicially erred when it refused to
allow him to impeach Mitchell with the same evidence. Neither assertion has merit.
A. Character Evidence
In general, a defendant in a prosecution for a homicide or an assaultive crime who
has raised self-defense is authorized under Evidence Code section 1103 to present
evidence of the violent character of the victim via the victim's subsequent acts of
violence, as well as prior acts of violence, to show the victim was the aggressor. (People
v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448 (Shoemaker).) The trial court,
however, has broad discretion under Evidence Code section 352 to exclude such
character 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

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danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid.
Code, § 352; Shoemaker, supra, at p. 448.)
These evidentiary rules also apply to evidence sought to be admitted for
impeachment purposes. (People v. Hill (1995) 34 Cal.App.4th 727, 738.) "Although
wide latitude should be given to cross-examination designed to test the credibility of a
prosecution witness, the court retains discretion to exclude collateral matters.
[Citations.]" (Ibid.) In this regard, "a state court's application of ordinary rules of
evidence--including the rule stated in Evidence Code section 352--generally does not
infringe upon [a defendant's federal constitutional right to present a defense].
[Citations.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82 (Cornwell).)
Similarly, "trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on . . . cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 679) Because " 'the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish' " (ibid.), there is no
violation of the Sixth Amendment right to present a defense "unless the defendant can
show that the prohibited cross-examination would have produced 'a significantly different
impression of [the witness's] credibility' . . . ." (People v. Frye (1998) 18 Cal.4th 894,
946.)

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On appeal, we review the exclusion of evidence under Evidence Code section 352
for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.) We will not
disturb the decision of the trial court to exclude evidence under Evidence Code section
352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. (People v.
Ochoa (2001) 26 Cal.4th 398, 437-438 (Ochoa); People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.)
Here, even if the trial court arguably erred in finding evidence of the stabbing by
Mitchell irrelevant to what Knox knew before the shooting regarding her character for
violence as it related to his claim of self-defense based on Shoemaker's holding that a
victim's subsequent acts of violence are relevant and admissible (Shoemaker, supra, 135
Cal.App.3d at p. 448), any error in this regard was harmless because the court properly
exercised its discretion to exclude such incident under Evidence Code section 352.
In weighing the probative value of the stabbing incident versus the prejudicial
value of its admission, the court fully considered that other acts of violence by Mitchell
were going to be admitted at trial, that it was questionable whether the stabbing incident
six months after the shooting as depicted in a full reading and review of the police report
had actually occurred, and that a mini-trial on such matter to determine whether it had
happened and showed a character trait of Mitchell's for violence and aggression would be
time-consuming, confusing, and raise numerous other issues. At no time during
Mitchell's later trial testimony did she claim she was not a violent person. Nor did Knox
testify or present any evidence through other witnesses that he had a reasonable fear of

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Mitchell due to her character for being violent or aggressive.7 The relevance of the
subsequent unproven stabbing incident on Knox's self-defense claim was thus minimal at
best. The jury already knew through Mitchell's testimony that she had taken James's keys
and papers from his car, and had chased Knox's car and thrown a purse at it the night
before the shooting because of her angry outbursts. Although Mitchell denied tossing a
crate through Knox's mother's window or threatening the Knox family, Knox was able to
present evidence from other witnesses that Mitchell had committed such acts of violence
shortly before the shooting and that Knox had been aware of such facts. The subsequent
alleged violent act evidence was thus cumulative of other evidence.
Although a defendant has a due process right to present evidence material to his
defense, "a defendant has no constitutional right 'to present all relevant evidence in his
favor, no matter how limited in probative value such evidence will be so as to preclude
the trial court from using Evidence Code section 352.' [Citation.]" (Shoemaker, supra,
135 Cal.App.3d at p. 450; see also Cornwell, supra, 37 Cal.4th at p. 82.) We, therefore,
conclude the trial judge could reasonably find on this record that the prejudicial effect of
admitting the evidence of an alleged subsequent stabbing by Mitchell far outweighed
whatever minimal probative value such evidence would have.
7 We note the only evidence of fear by anyone before the shooting was observed in
James's face when he and Booker were confronted by Mitchell's brother Jonathan and her
cousin Claiborne after Mitchell had turned away from the gate to walk back to the house.
Knox based much of his self-defense claim on the actions of Mitchell's family toward his
brother and Booker.

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Moreover, in light of the other evidence of Mitchell's violent outbreaks from
which Knox was able to bolster his self-defense claim, we cannot find the failure to admit
evidence of the subsequent stabbing prejudicial to him or resulted in a manifest
miscarriage of justice. (Ochoa, supra, 26 Cal.4th at pp. 437-438.) The bulk of the case
was eyewitness testimony, independent of Mitchell's testimony, identifying Knox as the
shooter. The court permitted Knox, on the barest of evidence, to alternatively argue self-
defense of himself and others with regard to all three counts involving different victims
based on Mitchell's violent or aggressive acts of which Knox knew about before the
shooting and on circumstantial evidence surrounding the confrontation between
Mitchell's family and James and Booker, which included a gun being brought to the
porch by one of Mitchell's brother after the shooting and bullets being found in the pants
pocket of another brother. Because the jury found Knox guilty only of the lesser charge
of attempted voluntary manslaughter on two of the counts and not guilty on the other, the
jury must have, to some extent, taken into account Knox's alternative claim of self-
defense in determining his guilt. "Thus, any conceivable error depriving [Knox] of a due
process right to present this character evidence would be harmless beyond a reasonable
doubt. [Citation.]" (Shoemaker, supra, 135 Cal.App.3d at p. 450.)
B. Impeachment of Victim/Witness
Similarly, we conclude the trial court did not prejudicially abuse its discretion in
precluding evidence of the stabbing incident under Evidence Code section 352 for
impeachment of Mitchell.

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Since the adoption in June 1982 of article I, section 28, of the California
Constitution, known as the "Truth-in-Evidence" provision, evidence of "immoral conduct
[is] admissible for impeachment whether or not it produced any conviction, felony or
misdemeanor." (People v. Wheeler (1992) 4 Cal.4th 284, 290-297 & fn. 7, p. 297
(Wheeler).) The admissibility of any past misconduct for impeachment, however, is
"limited at the outset by the relevance requirement of moral turpitude. Beyond this, the
latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in
individual cases is broad. The statute empowers courts to prevent criminal trials from
degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler,
supra, at p. 296, fn. omitted.) When a court exercises its discretion under Evidence Code
section 352, it takes "into account, as applicable, those factors traditionally deemed
pertinent in this area. [Citations.] But additional considerations may apply when
evidence other than felony convictions is offered for impeachment. . . . [I]mpeachment
evidence other than felony convictions entails problems of proof, unfair surprise, and
moral turpitude evaluation which felony convictions do not present. Hence, courts may
and should consider with particular care whether the admission of such evidence might
involve undue time, confusion, or prejudice which outweighs its probative value."
(Wheeler, supra, at pp. 296-297, fns. omitted.)
The court in this case did just that. Unlike Knox's characterization that the court
ruled the evidence inadmissible as impeachment evidence simply because it did not
understand the law or know how to fairly admit the evidence, the record clearly shows
the court consciously and soundly exercised its discretion under Evidence Code section

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352 to disallow the alleged stabbing incident. In doing so, the court took into account all
the appropriate, traditional factors before finding that although the evidence would be
relevant on credibility if true, because the alleged felony conduct described in the police
report involved moral turpitude, that the prejudice caused by its uncertainty in not being a
conviction which would require a mini-trial and the possibility of jury confusion far
outweighed its probative value on Mitchell's credibility.
Moreover, as in our above discussion on the exclusion of the same incident as
character evidence, any conceivable error was harmless. Because Mitchell's credibility
was already subject to impeachment with other aggressive, violent acts and Knox was not
prevented from presenting a defense or cross-examining Mitchell on those and other
matters, it is not reasonably probable that the verdicts were affected by the exclusion of
the evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
V
BLAKELY, BOOKER AND CUNNINGHAM
At sentencing, Knox's counsel took exception to portions of the probation report
that relied upon facts not found true by the jury to make him ineligible for probation
except in an unusual case and to impose the upper term. Relying on Blakely, supra, 542
U.S. 296, counsel argued the probation report was wrong because the jury had made no
findings that Knox had used a gun or had caused great bodily injury in this case because
the jury had found Knox not guilty of the greater offenses charged which had included
those allegations. Counsel also argued there were no jury findings on vulnerability of the
victims, on planning and sophistication, or on whether Knox had engaged in violent

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conduct that indicated a serious danger to society. Although counsel conceded that
Knox's performance on probation had been unsatisfactory, he pointed out that Knox had
not been on formal probation as his priors were all misdemeanors and that the recent ones
were decreasing in seriousness, having only been "driving on a suspended license. . . ."
Counsel claimed this entire case should be mitigated based on Mitchell's initiation,
provocation and willingness to participate in the unfortunate incident because she refused
to give James back his registration papers. The prosecutor argued Blakely did not
preclude the upper term for this aggravated case of attempted voluntary manslaughter.
In denying probation, the trial judge stated:
"First of all, I had the opportunity to hear the trial. So I'm well
aware of the facts and circumstances of the case and I've also had the
opportunity . . . to read the probation report. But, also, I had the
opportunity to read the letters in support of Mr. Knox . . . . [¶] And
all of those letters show me one thing, that . . . Mr. Knox does have
good qualities, that he . . . doesn't have a gang history. He doesn't
have a drug history and has been apparently one that has . . . been
employed presumably for some period of time. [¶] [S]o I'm really
impressed by those letters. I don't usually see letters like that at all.
I really don't. So Mr. Knox is unique in that sense that he's not the
kind of person . . . I would normally see here. [¶] But I think the
problem is that the crime . . . is a horrendous one because the facts
and circumstances, as the jury found true, point out a vicious attack
by shooting at unarmed people in a closed area and three people are
actually hit. One of them is so injured that she is alive only on life
support and she can only utter sounds and probably can only do that
the rest of whatever life she has left totally. [¶] So the facts of the
case are substantial. The evidence that Mr. Knox . . . was the person
who committed the crime, I thought was overwhelming, that he was
identified by just about everyone as being the person that was the
person that, in effect, empties his gun into this close proximity of
people. . . . I just can't ignore that at all that this was a vicious
attack. [¶] It was an aggravated crime. It was done with callousness
and viciousness and has left in its wake a person that, for all

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practical purposes, is deceased because she will never ever regain
any kind of life at all. [¶] And for that, it deserves punishment. . . ."
The court found that this was not the type of unusual case for which probation
should be granted. In weighing the facts affecting probation in California Rules of Court,
rule 4.414,8 the court found those in favor of granting probation were overruled because
of the vicious facts and circumstances of this case. It also noted that Knox's criminal
history had involved weapon charges, assaults with a weapon in 2000 and a conviction
for inflicting corporal injury on a spouse in 2001.
The trial judge then stated that "[w]ith respect to [count 1], the court, in weighing
the circumstances in aggravation and the circumstances in mitigation, I will find that this
is an offense that is aggravated by the facts and circumstances that it was created into. It
was not created in a vacuum, but it was something that did not involve a single shot, but
an intentional design to pull the trigger ten separate times, and that means that there's . . .
a certain intent or reflection upon that physical moment of pulling the trigger ten times.
That is a circumstance in aggravation. [¶] [Knox] engaged in this conduct and that
indicates that he is a danger to society . . . . [¶] There are factors in mitigation, including .
. . the defendant's statement to me in the letter; the close family support he has. [¶]
However, the court finds that the factors in aggravation outweigh the factors in
mitigation. [¶] . . . [¶] So, at this time, the court . . . sentence[s] the Defendant [on]
8 Further references to rules are to the California Rules of Court.

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Count 1 for the crime of attempted voluntary manslaughter for the aggravated term,
which is one-half of the term of 11 years or five years, six months."
The court next sentenced Knox to the middle term on count 2 to run consecutive to
count 1 (one-third the midterm of three years, or one year), based on its finding under
rule 4.425 that this case involved separate acts of violence and there were two victims.
The court noted that the total prison commitment for Knox was six years and six months.
On appeal, Knox raised the issue that the trial court's imposition of the upper term
based on facts not found true by the jury violated his federal constitutional rights to proof
beyond a reasonable doubt and a jury trial under Blakely, supra, 542 U.S. 296 and
Booker, supra, 543 U.S. 220, even though he recognized we were bound to follow our
Supreme Court's holding in People v. Black (2005) 35 Cal.4th 1238 (Black) that Blakely
did not invalidate the California DSL sentencing scheme as to the choice of an upper
term or consecutive sentencing. (Black, supra, at p. 1244.)
On January 22, 2007, however, the United States Supreme Court overruled Black,
supra, 35 Cal.4th 1238 and struck down the DSL on precisely the grounds urged by Knox
in this appeal. (Cunningham, supra, 549 U.S. ___ [2007 WL 135687].) As that court
stated, "Contrary to the Black court's holding, our decisions from Apprendi to Booker
point to the middle term specified in California's statutes, not the upper term, as the
relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find
the facts permitting an upper term sentence, the system cannot withstand measurement
against our Sixth Amendment precedent." (Cunningham, supra, 549 U.S. ___ [2007 WL
135687, at p. 14, fn. omitted].) In so holding, the high court again reaffirmed Apprendi's

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bright-line rule, that had been reiterated in both Blakely and Booker, that "[e]xcept for a
prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'
[Citation.]" (Cunningham, supra, 549 U.S. ___ [2007 WL 135687, at p. 11].)
In their supplemental briefing, the People concede that Cunningham generally
precludes a trial court from finding facts to impose an upper term sentence and that the
middle term is the statutory maximum for a valid sentence in California in the absence of
jury found aggravating facts. Nonetheless, the People argue there was no Cunningham
violation in this case because the jury trial right does not extend to an aggravating
circumstance based on Knox's criminal record, citing the Almendarez-Torres exception
(Almendarez-Torres v. United States (1998) 523 U.S. 224, 246) and a single aggravating
circumstance is sufficient to render Knox eligible for the upper term (People v. Osband
(1996) 13 Cal.4th 622, 728-729) which together provides the trial court with the statutory
authority to impose the upper term under the Sixth Amendment. The People thus posit
that because the court had the authority to impose the upper term, it could find other
aggravating facts in evaluating whether to impose the upper term regardless of whether
they were found by a jury beyond a reasonable doubt without violating the holding of
Cunningham.
In addition to finding the People's reasoning unpersuasive, we agree with Knox
that the trial court improperly based its sentencing discretion to impose an upper term on
facts not found by the jury and thus the sentence is violative of the holdings in
Cunningham, Blakely and Booker. However, we decline to engage in a lengthy harmless

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error analysis under Chapman v. California (1967) 386 U.S. 18, 24. While the conduct in
which Knox engaged is egregious, Knox had other qualities that the trial court
specifically found were mitigating but outweighed based on aggravating factfinding on
matters not contained within the jury verdicts. Because the sentencing record shows that
the court could have properly imposed an upper term based on the Almendarez-Torres
exception for Knox's prior convictions and his admittedly poor performance on
probation, as well as on the fact of multiple victims which was necessarily found by the
jury in convicting Knox on counts 1 and 2 (see People v. Calhoun (2007)40 Cal.4th 398
[53 Cal.Rptr.3d 539, 544-545]), in addition to the several strong mitigating factors the
court found, we vacate the total sentence imposed to open up the full array of
discretionary choices for resentencing because there is no way to determine whether the
trial court would have imposed the same sentences had it known that the facts it had
found in aggravation could not properly be used to impose the upper term on count 1.
Accordingly, we vacate the sentence and remand the case for resentencing.

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DISPOSITION
The sentence is reversed and the case remanded to the superior court to conduct a
new sentencing hearing consistent with the views expressed in Cunningham, supra, 549
U.S. ___ [2007 WL 135687]. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.

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