Filed 4/1/14 P. v. Knoefler CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Sierra)
                                                            ----


THE PEOPLE,                                                                                  C072549

                   Plaintiff and Respondent,                                    (Super. Ct. No. CR02970X)

         v.

KANE KENNETH KNOEFLER,

                   Defendant and Appellant.




         Two citizens and three police officers testified that defendant Kane Kenneth
Knoefler, in a drunken rage, threatened them and fought strenuously to resist arrest. A
jury convicted him of one count of making a criminal threat (Pen. Code, § 422) and three
counts of resisting a peace officer (Pen. Code, § 69). On appeal, defendant contends the
trial court abused its discretion during its review of sealed transcripts of the officers’
personnel files pursuant to his Pitchess motion1 and by refusing to play an audiotape,




1 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Evid. Code, §§ 1043-
1045.

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recorded by one of the arresting officers, that had not been transcribed. Finding no abuse
of discretion, we affirm.
                                         FACTS
       Neither the citizens whom defendant verbally abused nor the police officers he
threatened wanted the night of July 22, 2012, to end as it did. Standing on the street
inebriated, defendant shouted obscenities and tried to provoke two construction workers
who had rented an apartment near the bar defendant frequented. Instead, they attempted
to diffuse his anger and invited him up for a drink and some food. They were not the
only targets of his wrath.
       An owner of a local restaurant had just begun to relax after work when she heard a
lot of noise and went out onto her balcony. Defendant started shouting profanities at her
as well. She asked him to stop. While she was calling the police, he took his penis in his
hand and told her she needed it. When asked by the dispatcher if defendant had any
weapons, she asked if defendant’s penis would count. She testified she was so terrified
she vomited.
       The police, who arrived in uniforms and marked cars, did not seek to arrest anyone
but simply asked defendant and his friends to disperse because neighbors had complained
about the noise. Defendant, shirtless, was demonstrably agitated. According to the
officers, he was “hopping around on the balls of his feet like a boxer,” spewing threats
and obscenities. He warned, “I’m a trained cage fighter. I’ll fuck you up.” He told
Deputy Nathan Rust he was a “fat fucker” and Deputy Nicole Pastore he was going to
“fuck you in all your holes.” At this point, defendant remained on a balcony while the
officers interviewed the construction workers on the street and attempted to restore order.
The construction workers gave them permission to enter their apartment.
       Deputy Pastore, a former New York police officer and firefighter, testified that she
remained on the street level because she could see bottles of hard alcohol and beer, which
she feared could be thrown at her; she knew there was at least one weapon in the

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apartment; and defendant’s behavior was out of control. He continued yelling at the
officers, stating, “[C]ome up you fucking pigs. Fucking cops . . . I’ll fuck you both. I
will fuck you both up. I’ll fuck you. I just got out of the pen. And I shot someone
before. I shot pigs before, and I can do it again.”
       Deputy Pastore was afraid. She believed defendant intended to carry out his
threats. Not knowing how many people or how many weapons were in the apartment,
she called for backup. Two additional officers responded.
       With the additional support, the police officers ascended the stairway. Defendant
attempted to jump over the railing of the stairs but fell backwards off the railing into the
stairwell. He ran back into the apartment.
       The officers went into the apartment and Deputy Rust ordered defendant to lie on
the ground. Deputy Pastore placed handcuffs on him and tried to double-lock them to
prevent the handcuffs from tightening and injuring defendant. Defendant, however,
resisted and Pastore could neither search him nor double-lock the handcuffs. The officers
lifted him off the floor and tried to get him to walk out of the apartment. As they reached
the top of the stairs, defendant attempted to trip Deputy Pastore by wrapping his leg
around hers. Another officer, observing defendant’s attempt to trip Pastore, shoved the
entire group into the wall to keep them from falling down the stairs.
       As defendant continued to struggle, the officers had to carry him down the stairs
and tried to put him into the patrol vehicle. He refused, stating, “I’m not going to jail.
I’m not getting in the car.” He pushed off the side of the patrol car with his legs, at which
point Deputy Rust warned him that if he did not comply he would be Tased. When
defendant continued to resist, Deputy Rust Tased his calf and was then able to get him
into the car.
       Yet when they arrived at the station, defendant once again refused to cooperate.
He would not leave the patrol car, stating, “[T]his is my home now.” Deputy Boyd had



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to put him in a chokehold and obtain the assistance of another officer to get defendant out
of the car and into the jail.
                                      DISCUSSION
                                              I
       Deputy Pastore made an audio recording of a part of the incident. Just before the
last witness testified at trial, defendant moved to admit the recording into evidence to
demonstrate that he did not threaten the officers. The court denied the motion following
the witness’s testimony because the recording had not been transcribed, it was of poor
quality, and it would confuse the jury in the absence of a transcript. On appeal, defendant
changes his theory of admissibility, asserting for the first time that the tape demonstrates
his remarks preceding his arrest did not frighten Deputy Pastore.
       The trial court is vested with broad discretion in ruling on the admissibility of
relevant evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
We agree with defendant that the tape, whether admitted to demonstrate defendant did
not make the threats or that the threats did not frighten Deputy Pastore, was certainly
relevant. We disagree, however, that the trial court abused its discretion. Moreover, any
possible error in excluding the tape was harmless beyond a reasonable doubt.
       The court can exclude relevant evidence that may unduly confuse the jury.
(Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) In this case, defendant failed to have the
tape transcribed to assist the jury in understanding what was being said on the tape. By
all accounts, the tape was of very poor quality. Thus, we cannot say the court abused its
discretion by refusing to admit a recording that most certainly would have confused
some, if not all, of the jurors.
       But more importantly, the tape was of minuscule, if any, significance. Defendant
argues that the tape would have impeached Deputy Pastore’s testimony that his threats
frightened her. But Deputy Pastore was just one of at least five witnesses who described
the content of the threats as well as the menacing manner in which defendant peppered

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his threats with an almost endless stream of obscenities. One neighbor, accustomed to
boisterous behavior by bar patrons, called the police because defendant’s antics were so
unnerving. She testified she was so traumatized she vomited.
       One of the construction workers corroborated her testimony. He too described
how defendant tried to instigate trouble. He testified, “[Defendant] just kind of, just
called me like a white piece of trash, get your ass down here SAP, and pacing back and
forth with clenched fists, looking for trouble.” He later explained that defendant was
ready to start a fight; he was “[j]ust looking at me like, with a flared punch, [you] know,
his punch, like with the intent to punch me.”
       This worker specifically described defendant’s verbal assaults of the officers,
particularly Deputy Pastore, this way: “It was just constant, constant, constant. [A]nd to
her, the female officer, he says: I fuck you. I fuck you in all your holes. I will fuck you,
you know, anything he could say. Those were actually words to her, but it continued,
sexual conduct with her. And then fat and chubby and all of the other stuff with the other
guy [police officer].”
       Deputy Pastore and the other two officers reiterated the same accounts to the jury.
Every witness confirmed that defendant had hurled threats at the officers and was
belligerent in both tone and manner. Yet defendant insists that Deputy Pastore’s calm
voice on the tape undercuts her testimony that she was afraid. We disagree. As the
Attorney General points out, Deputy Pastore did not start recording her encounter with
defendant until after the reinforcements had arrived. Just because she might have been
able to regain her composure once she received adequate support does not mean she had
not been afraid at the time the threats were made. As a trained police officer, moreover,
she might have been able to project a calm and commanding tone in her voice at odds
with her internal emotional state of fear.
       We conclude the court’s exclusion of the tape was harmless under any standard
because the evidence that defendant threatened Deputy Pastore is overwhelming. We

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also reject any suggestion that defendant’s counsel provided inadequate representation.
In the absence of prejudice, defendant has failed to meet his burden of demonstrating he
was denied his constitutional right to the effective assistance of counsel. (Strickland v.
Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].)
                                             II.
       Defendant’s Pitchess motion sought to discover the personnel records of Officers
Boyd, Rust, and Pastore necessary “to prove the tendency of the officers to harass
citizens, make material fabrications, and conduct unlawful detentions, searches, seizures,
and arrests.” The trial court ordered the Sierra County Sheriff’s Office to provide it with
the personnel records as requested. Following an in camera review of the records, the
trial court found one discoverable item and disclosed a citizen complaint lodged against
one of the officers on March 13, 2012, for excessive force. Defendant requests this court
to review the personnel records examined by the trial court to determine whether the trial
court abused its discretion by refusing to disclose any other documents in the officers’
files. The Attorney General concurs in the propriety of the request.
       We have conducted an independent review of the three officers’ personnel records
and conclude the trial court did not erroneously withhold any documents. (See People v.
Fuiava (2012) 53 Cal.4th 622, 646-648.) Defendant has failed to demonstrate an abuse
of discretion.
                                      DISPOSITION
       The judgment is affirmed.

                                                            RAYE              , P. J.
We concur:


         ROBIE              , J.


         MURRAY             , J.


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