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The People v. Udi Fishman

February 8, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
UDI FISHMAN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62093640)

The opinion of the court was delivered by: Robie , J.

P. v. Fishman 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NOT TO BE PUBLISHED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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Convicted of burglary, attempted false imprisonment, unlawful use of tear gas, and possession of a deadly weapon, defendant Udi Fishman appeals, contending the trial court erred by: (1) improperly excluding certain impeachment evidence; (2) refusing to disclose certain e-mails one of the victims sent on her employer's computer system; and (3) failing to provide the jury with a unanimity instruction on the burglary charge. Finding no merit in any of defendant's arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Juan Trejo first met defendant in 1998, when defendant solicited a bid from Juan to build a 340-foot-long retaining wall on defendant's property in Los Gatos.*fn1 After Juan built the wall, he continued to do various work for defendant over the years. In 2006, he rebuilt the wall after a big part of it collapsed. Juan and defendant thereafter were involved in litigation involving an engineering firm and the manufacturers of the stone used in the wall. The litigation ultimately settled in 2009, with Juan receiving $540,000 and defendant receiving $290,000. (The money paid to Juan was apparently for amounts defendant owed him for rebuilding the wall.)

After the settlement, the relationship between Juan and defendant deteriorated. Juan claimed he loaned defendant $45,000, but then refused to give defendant any more money after defendant said he needed "all of it" and that "everybody got rich, except me." Defendant claimed that work remained for Juan to do on his property and the $45,000 Juan gave him was not a loan but repayment for sums defendant had advanced to Juan's employees on Juan's behalf while the wall was being rebuilt.

On September 16, 2009, Juan's wife, Christine, was at their home in Placer County with her brother-in-law, George Obregon; Juan was working in the Bay Area. A van with what turned out to be fake PG&E magnetic placards on the side drove onto the property and around to the back of the house. It was later determined that the van had mismatched license plates on it, both of which belonged to other vehicles. Defendant was the driver.

Upon seeing the van, Christine went out the back door and approached the van. Defendant, who was wearing sunglasses, an orange safety vest, and a hat, told Christine he was there to do an audit. She told him to stay there, she was going to get her husband, but as she walked back toward the house she discovered he was following her. When she told him to stay there again, he told her he had left the audit in the van and he had to go get it.

From the house, Christine watched defendant get back in the van and start to drive off. She locked the door and called out to Obregon, who was in the bathroom. She watched as defendant appeared to be driving off the property but then stopped, parked the van again, and this time approached the front of the house. Christine went to the front door and saw defendant approaching the front stairs with a red canister in his hand. As she yelled at him to get rid of the canister, he came up to her, telling her that if she would hold the audit he would get rid of the canister. As she reached to take the audit from him, he sprayed her in the face with pepper spray. She stepped back and screamed for Obregon to help her. Then she turned and tried to run, but fell to the floor. Defendant followed her into the house, and when Obregon came out, approached defendant, and asked him what was going on, defendant sprayed Obregon in the face with the pepper spray as well. A struggle between the two men ensued, and in an attempt to get defendant off Obregon, Christine hit defendant with a bottle and then stabbed him with a knife. She then ran outside and called 911. While waiting for the police, she got in the van and saw cardboard laid down in the back, along with some rope. A wooden table leg altered with a weighted end and a tennis ball covering the end was later found in the van.

Defendant was ultimately charged with attempted murder, burglary, attempted kidnapping, two counts of unlawful use of tear gas, and possession of a deadly weapon (the table leg). At trial, he admitted going to the Trejos' house in disguise, but he claimed it was only so Juan would come open the gate so they could talk. He also testified that when he came to the front door, Christine suddenly raised her hand with a knife in it and stabbed him in the forearm. He claimed the pepper spray discharged when he was trying to defend his face from Christine's attack. He also claimed that Christine then ran into the house, and when he stepped in the house to see who she was talking to, Obregon lunged at him and knocked him down. He testified that he probably pressed the trigger on the pepper spray again "by reflection" when Obregon knocked him down.

The jury acquitted defendant of attempted murder and attempted kidnapping but convicted him of burglary, attempted false imprisonment (a lesser included offense of attempted kidnapping), both counts of unlawful use of tear gas, and possession of a deadly weapon. The trial court sentenced defendant to five years in prison. Defendant timely appealed.*fn2

DISCUSSION

I

Exclusion Of Impeachment Evidence

A

Alleged Molestation

In their motions in limine, the People sought to exclude evidence that in 1996, Juan had been charged with molesting his stepdaughter (Christine's daughter). At a preliminary hearing in that case, an investigator had testified that Christine told her that Juan initially denied the molestation but then admitted to Christine that he had touched the alleged victim on the chest and private area. When the investigator talked to Juan, however, he denied touching the alleged victim with any sexual intent. Eventually, the case was dismissed for insufficient evidence. The People told the court that they believed Christine would maintain the molestation never occurred and Juan continued to deny the conduct. The People also noted that while they had not interviewed the alleged victim (who was now an adult), they were informed that the defense had interviewed her and she had recanted her allegations. The People acknowledged that, if proven, the molestation would constitute criminal conduct involving moral turpitude and would therefore be ...


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