Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA069615, Laura C. Ellison, Judge.
L. Walker Van Antwerp III for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Jorge Marquez Castaneira appeals from his conviction on two counts: assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and cutting a utility line (§ 591). Appellant asserts the trial court committed reversible error when it precluded questioning directed at challenging the credibility of Maria Villalobos, the complaining witness and alleged victim. We agree this was error but find it harmless. The judgment of conviction is affirmed.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
The incident occurred on October 8, 2007. At the time, appellant and Maria Villalobos (Maria) had lived together for 11 years. After nine years, their romantic relationship ended but they continued to reside in the same house for another two years (in separate bedrooms), for the sake of their two children.
Appellant and Maria had bought the house with the help of appellant’s sister, Elizabeth, because appellant did not have good credit. Initially, Maria and Elizabeth were on the title. Later, Elizabeth was taken off the title. Maria signed a quitclaim deed in favor of appellant but the deed was unrecorded at the time of the incident.
Maria testified she came home on October 8, 2007, and found appellant angry and agitated. She was scared and decided to call the police. When she reached for the telephone, appellant pushed her, grabbed the phone, and yanked the cord out of the wall. Appellant then placed a gun to her head. Appellant denied disconnecting the phone cord and placing a gun to Maria’s head. Maria’s mother (Mrs. V.), who was present at the time of the incident, testified to the following: (1) as she exited the bathroom into the hall, she saw appellant with his back turned towards her; (2) she saw her daughter in front of appellant; (3) her daughter was screaming “he’s pointing at me” and when Mrs. V. asked for clarification her daughter replied “he’s pointing at me with a gun;” (4) Mrs. V. saw what looked like a bag in appellant’s right hand and she saw him drop the object into a box on the floor; (5) she saw appellant subsequently pick up the object and take it outside towards the garage; (6) where she saw him lean forward and throw something under the garage door.
Maria called 911 on her cell phone. Police arrived shortly thereafter and arrested appellant. They found a dark colored bag in the garage in the area Mrs. V. had seen appellant throw the object. The bag contained a gun and two magazines with live rounds. Mrs. V. also testified that she had seen appellant threaten Maria with a gun on a previous occasion, and she saw him acting violently towards her on yet another occasion. Appellant was charged with four counts: assault with a firearm on a person (§ 245, subd. (a)(2), count one), making a criminal threat (§ 422, count two), injury to a telephone or power line (§ 591, count three), and violation of a protective order (§ 273.6, subd. (a), count four). The case was tried to a jury. Appellant was convicted of counts one and three and acquitted on counts two and four. He was sentenced to a total of seven years and eight months in prison. He filed a timely appeal.
DISCUSSION
In March 2008, while trial was pending, appellant received a telephone call from Leticia Nettles, Maria’s sister. Appellant recorded and transcribed the conversation. Leticia told appellant that Maria said if he took his name off the title of the house, Maria would sell it, give him a share of the proceeds, and would allow him to visit his children. Leticia also stated Maria had told her that if appellant did not agree, Maria would tell police that he forged her signature on the quitclaim deed. During trial, Maria admitted signing the quitclaim deed.
Appellant wanted to question Maria and Leticia about the content of the conversation and then, if necessary, to offer the transcript and the tape for impeachment. The trial court initially found the tape to be relevant but postponed ruling on its admissibility. Nevertheless, the court precluded appellant from pursuing this line of questioning on cross-examination.
Appellant then called Maria as his own witness and a discussion ensued between the trial court and both counsel on admissibility of the tape which—according to the prosecution—fell under section 632. That statute provides: “Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” (§ 632, subd. (d).) Appellant invoked section 633.5, the extortion exception to section 632. Section 633.5 provides: “Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person....”
Evidence Code section 785 eliminates the previous restriction on attacking the credibility of one’s own witness.
The court accepted the prosecution’s argument regarding section 632, rejected appellant’s extortion argument, and ruled the tape was inadmissible. Before questioning Maria on direct examination, appellant specifically asked the trial court whether it had ruled: “[T]hat I can’t ask her any questions about whether or not she initiated a call or whether or not she importuned or initiated her sister to make the call?” The court confirmed: “Nothing that arises from that phone conversation.” The trial court did not explain the basis for this ruling, which disallowed the line of questioning requested by appellant.
The Evidence Code provides broad authority for admission of evidence going to witness credibility. Evidence Code section 780 provides in part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶]... [¶] (f) The existence or nonexistence of a bias, interest, or other motive.” Evidence concerning the alleged existence of a witness’s motive to fabricate testimony is admissible to attack his or her credibility. (People v. Johnson (1984) 159 Cal.App.3d 163, 168.) This evidence may include specific acts and conduct of the witness. (Ibid.) A party may attack the credibility of a witness by an offer of extrinsic evidence or by cross-examination of a witness, if the evidence or cross-examination reasonably tends to establish that the witness has a motive to fabricate, or give untruthful testimony, even though there may be no reasonable basis for the existence of such a motive. (People v. Allen (1978) 77 Cal.App.3d 924, 931.)
We note that none of the parties makes an argument regarding the trial court’s discretionary authority under Evidence Code section 352. We assume the trial court based its decision on section 632. Section 632 applies to the tape and transcript, but not to the line of questioning. Excluding the line of questioning was error. We turn to the issue of prejudice.
We find no prejudice from the error because, given the strength of the evidence against appellant, it is not likely that he would have achieved a more favorable result without it. First, the evidence, while bearing on Maria’s credibility, was collateral; it did not address the incident which gave rise to the charges. The incident itself was described not only by Maria’s testimony but also by her excited utterance at the time (“he’s pointing at me,” “he’s pointing at me with a gun”); the prior incidents with Maria, including one strikingly similar to the present offense; and the uncontested evidence that he had a gun during the incident. The testimony provided by Mrs. V. corroborates Maria’s testimony regarding what transpired on the night of October 8, 2007.
On this record, it is not reasonably probable that the jury would have reached a result more favorable to appellant even if he were allowed to pursue the line of questioning regarding the telephone conversation. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The error is harmless.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.