Opinion
2d Crim. No. B224629 Super. Ct. No. TA066706
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. DEWAYNE GILES, Defendant and Appellant.
David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Edmund G. Brown Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds, Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Appellant's conviction for first degree murder of Brenda Avie was reversed after the United States Supreme Court decided he did not necessarily forfeit his Sixth Amendment right to confront her testimonial hearsay statements about prior acts of domestic violence when he killed her. (Giles v. California (2008) 554 U.S. 353, Giles I.) This is an appeal from conviction upon retrial. At the retrial, the prosecution did not offer Avie's hearsay statements in its case in chief, but did allude to incidents of domestic violence while cross-examining appellant. It offered no other evidence of Avie's statements or domestic violence.
Appellant was again convicted of first degree murder. The jury found true the allegation that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d). The court sentenced him to 50 years to life in prison. (§ 187, subd. (a).)
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends (1) that the prosecutor committed misconduct when she alluded to domestic violence during cross-examination because she knew appellant would deny it occurred and she had no good faith basis to believe she could prove it; (2) that the trial court violated his constitutional rights to due process, against self-incrimination, and to confront witnesses when it allowed the prosecutor to read most of his testimony from the first trial to the jury during the rebuttal case; and (3) that the trial court erroneously precluded two defense witnesses from answering questions that would have led to evidence of self-defense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant does not dispute that he shot Avie six times on September 29, 2002, killing her. He testified at both trials that he shot her in self-defense because she threatened to kill him and he thought she had a weapon. He did not see a weapon but it was dark.
At both trials, appellant presented evidence that Avie was a violent person, she shot a former boyfriend, she challenged other women with knives, she previously cut appellant, she was jealous about his new girlfriend, she had threatened to kill him and his new girlfriend, and he shot her because she charged him in a dark driveway with her arm raised. He said he closed his eyes and fired until the gun would fire no more. There were no witnesses.
The prosecutor's theory was that appellant was not afraid of Avie, that he deliberately provoked jealousy between his girlfriends because he loved the drama, and that the six bullet wounds demonstrated that he killed Avie deliberately and with premeditation.
The physical evidence could have been consistent with either theory. Avie's body was found in a dark driveway several feet from a lighted back door. There were six gunshot wounds through Avie's torso. One shot passed through her upper left bicep and was consistent with Avie facing appellant with her left arm raised. The others were consistent with her turning away. The medical examiner could not determine the sequence of the shots, but they were fired in rapid succession. He could not determine the position of her body when she was shot, but her left side was closer to appellant than her right during each shot, and each shot was from a slightly different angle relative to her body. Some of the shots went through Avie's body in a downward trajectory and some in an upward trajectory. Appellant was about eight inches taller than Avie. Scrapes on Avie's knees were consistent with falling to her right side. The examiner could not say how far away appellant was from Avie when he shot her, except that it was more than two feet.
After appellant shot Avie, his grandmother and cousin came to the driveway. He handed a semi-automatic pistol to his grandmother, which she later gave to police. It had one live cartridge inside. Investigators found two expended shell casings. They found no other casings and found no bullets. No bullets were left in Avie's body. Appellant's cousin retrieved a magazine clip from the driveway and gave it to the police. It contained four live rounds. No other weapons were found and no purse was found near Avie.
The First Trial
In appellant's first trial, the prosecutor introduced Avie's out of court statement concerning a prior incident of domestic violence. A police officer testified that he responded to a 911 call three weeks before appellant shot Avie. Avie told the officer that appellant had choked her, punched her in the face and head, and held a folding knife three feet from her while he said, "if I catch you fucking around I'll kill you." She was upset. The officer examined her and saw no physical injuries, but did feel a bump on her head. In the defense case of the first trial, appellant denied the incident.
Question: "The police came out on one occasion. You heard the officer testify that you threatened her with a knife. Do you remember that?" Answer: "Yes." Question: "Okay. And you're saying you did not do that, correct?" Answer: "Correct." Question: "Okay. Have you ever threatened her with a knife?" Answer: "No, I haven't."
The first jury convicted appellant of first degree murder. While his first appeal was pending, the United States Supreme Court decided Crawford v. Washington (2004) 541 U.S. 36, holding that the Confrontation Clause guarantees that testimonial statements of witnesses absent from trial will be admitted only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Appellant then argued that admission of Avie's un-confronted report of domestic violence violated the Confrontation Clause.
We decided that the doctrine of forfeiture by wrongdoing barred the claim because appellant rendered Avie unavailable as a witness when he killed her. The California Supreme Court agreed, but the United States Supreme Court did not. It concluded that the doctrine of forfeiture by wrongdoing only applies if the defendant acts with intent to prevent the witness from testifying. (Giles I, supra, 554 U.S. 353, 361.) No such foundation had been laid in appellant's case. The Court vacated judgment and remanded the case for further proceedings consistent with its opinion, noting that "the court is free to consider evidence of the defendant's intent on remand." (Id. at 377.)
People v. Giles (2007) 40 Cal.4th 833, overruled by Giles v. California (2008) 554 U.S. 353.
On transfer from the California Supreme Court, we reversed because there was no evidence in the record that appellant intended to prevent Avie from testifying. (People v. Giles (Feb. 25, 2009, B166937) nonpub. opn.].) We did so, "without prejudice to the trial court's assessment of any foundational showing that may be made on retrial." (Id. at p. 5.) In particular, we noted that the prosecution might lay a foundation that the statement was not testimonial if its primary purpose was to deal with a contemporaneous emergency, and that it might lay a foundation that appellant forfeited his claim if it could prove that he rendered Avie unavailable by killing her with the intent to prevent her from reporting abuse to authorities or cooperating with a criminal prosecution concerning abuse.
The Retrial
The case was retried with a different trial judge, a different prosecutor, and a different defense attorney. They were aware that it was a retrial, but we find no discussion of Giles I the record.
Transcripts of the first two appearances following reversal were not included in the record on appeal.
Before the retrial, defense counsel objected to any evidence of Avie's accusations about prior acts of domestic violence. The prosecutor responded that she did not intend to use the information in her case in chief, but she might use it to rebut any defense evidence that the victim was violent, pursuant to Evidence Code section 1100. The court reserved its ruling. There was no mention of the Confrontation Clause or, forfeiture by wrongdoing.
The Prosecution's Case in Chief on Retrial
The prosecution presented testimony about the physical evidence from the medical examiner, a responding police officer, an investigator, and a firearm expert. It also presented the testimony of appellant's cousin, Veronica Smith, about events before and after the shooting.
Smith referred to appellant as her "uncle."
--------
Smith testified that she spent the evening before the shooting listening to music with appellant and friends in their grandmother's detached garage. Appellant's new girlfriend, Tamita Monks, and a neighbor, Marie Banks, were there. At some point, appellant went to the house to take a phone call from Avie. When he returned, he told his new girlfriend, Monks, to leave. About five minutes later, Avie arrived.
When Avie arrived she was not very friendly. Smith said Avie was not sociable and always had an attitude. She said Avie was a sweet person in her own way but very jealous of appellant. After Avie arrived, they all talked awhile. No one was yelling or screaming. Appellant was telling them "how much he loved [them] all," including Avie.
About half an hour after Avie arrived, Smith went into the house and lay on the couch. From there, she heard Avie and Banks leaving. They were laughing as they passed the house. About ten minutes later, she heard about five shots and she heard Avie yell, "Granny." There was no time between the shots so she could not tell how many were fired. She did not hear any arguing before the shots.
Smith went outside and saw Avie lying in the driveway. Avie's body was about a foot or two from the back door with her legs toward the garage and her head toward the street. Appellant was about two to three feet from her with their grandmother. Their grandmother took a gun from appellant. A magazine separated from it and Smith later gave it to police. She and her grandmother asked appellant questions, but he did not answer. He seemed dazed.
Smith told appellant to leave, but "[h]e wouldn't leave. He was in this zone. I put him in my mom's car and I drove him away." She left him at her friend's house in Compton and gave him money. In the first trial, she had testified that they did not say anything to each other in the car. However, on retrial she testified that appellant talked in the car saying, "that [Avie] wouldn't love him, she wouldn't leave him alone, and she couldn't -- that the devil -- she had demons in her, and she wouldn't leave him alone," among other things.
The Defense Case on Retrial
Before appellant testified, defense counsel argued that the prosecutor had no good faith basis to ask about prior acts of domestic violence against Avie because appellant previously denied them and because Avie was not available to rebut his denial. The prosecutor, who had police reports concerning the incident, responded that she believed in good faith that it took place and that "[m]aybe he might tell the truth this time." The court tentatively decided that the questions were proper but it indicated it would consider any contrary authority the defense might present. Again, no one mentioned Giles I.
Appellant testified that he was afraid of Avie. She always carried a knife in her purse. When they met, Avie told him she had stabbed her former husband in the leg and that she had shot a boyfriend. Appellant said they nevertheless dated for about six years but he was "cautious" with her. He called police once, after the first year, when she was breaking things in his house. About two years before he shot Avie, she swung a knife at him and cut his arm because she saw another woman's phone number on his pager. He displayed the scar to the jury. He said he did not call the police that time, but about a year and a half before the shooting he called the police when she broke his windshield with a brick. He said that, about nine months before the shooting, he saw Avie threaten Monks with a knife, and he had also seen her threaten another woman with a knife on a bus.
Appellant testified that he broke up with Avie about eleven months before the shooting because she was violent and could not control her drinking. About three months before the shooting, she came to his house and "trashed" it. She had a brick in one hand and a knife in the other. In his prior testimony, he did not mention a knife. She called him four or five times a day. He continued to see Avie occasionally to "keep the peace."
He testified that on the night he shot her, he was in his grandmother's garage with Smith, Monks, and Banks. Avie called him and he told her that Monks was there. Avie said, "Well, tell that bitch I'm on my way over there. I'm gon' kill her." He told Monks to leave. Avie arrived about ten minutes later. She made some comments about Monks and there was some tension. He told everyone to leave. Smith went inside the house and Banks and Avie left together. He was relieved.
About ten minutes later, he heard Avie coming up the driveway calling his name. He thought she was "ready to start up her violence." He thought she had probably run around the corner to her father's to get his gun or another weapon. The driveway was almost pitch dark. He could just see her "shadow." He pulled his gun out and laid it on a couch in the garage, and then walked to the edge of the garage entrance and asked what she wanted. (In the first trial, he said he stepped out of the garage before going back for the gun.) Avie said, "I know that you trying to bring that bitch back there. I'll kill you and that bitch." He said, "Just leave Brenda." She said, "You can't tell me what the fuck to do," and came toward him. He stepped back and grabbed the gun because he was afraid she had a weapon in her hand. (This sequence differed somewhat from his prior testimony.)
He testified that he could not see Avie's hands. He walked toward the back door of the house to try to get inside. He looked down and pushed the safety off the gun, because he was afraid Avie would stab or shoot him. When he looked up, she was nine or ten feet away, charging toward him with her left hand up in the air, saying "Where the fuck you think you going?" She had not reached the light so he could not see her hand. He was afraid for his life, so he raised his hand toward her hand and pulled the trigger. He thought he missed because she was still coming toward him. He stepped back, turned his head, closed his eyes and just started squeezing the trigger until it stopped firing. (In the first trial, he testified that his eyes were closed for all six shots and he did not say he saw her continuing to come at him or that he stepped back.)
On cross-examination, the prosecutor asked appellant about prior acts of domestic violence. He testified that he had never been violent with Avie before the shooting. The prosecutor asked him whether, "[On] September 5th of 2002, did you hit her?"; "Did you put a knife to her throat and tell her you are going to kill her?"; "[In] 2000 did you hit her?"; and "Did you ever hear her call the police?" He answered, "no" to each question. Defense counsel objected to the first question, saying "402," and made no further objections.
Appellant moved for a mistrial based on prosecutorial misconduct and requested, in the alternative, a curative instruction. Defense counsel again argued that the prosecutor had no good faith basis to ask about domestic violence against Avie because appellant previously denied it and no witness was available to rebut his denial. The prosecutor responded, "the reason that the witness might not be available to do it is because the defendant killed her, which is the reason we are here in the first place. . . . [¶] [I]f there is a good faith belief that it occurred, the People or any attorney can ask . . . , especially in this case where we have the situation that we do. . . . I think that's what the forfeiture doctrine is all about. Is that you can't just kill somebody and then come up and say whatever you want." Still, neither counsel brought Giles I to the court's attention. The prosecutor indicated she had no authority on point, saying, ". . . It's a something that I couldn't quite grab onto in 10 or 15 minutes in my 20 years of case notes downstairs it's a little difficult to come up with this particular issue." Defense counsel provided the court with copies of People v. Lo Cigno (1961) 193 Cal.App.2d 360 and People v. Ramos (1997) 15 Cal.4th 1133, concerning the good faith requirement. The court denied the motion for mistrial and reserved its ruling on the request for a curative instruction.
Cross-examination resumed. Appellant denied that he was sleeping with Avie during September. The prosecutor asked, "Well, you were arrested at her house in September; isn't that correct?" Appellant replied, "Yes. Doesn't mean I was sleeping with her." Defense counsel did not object.
The court subsequently denied appellant's request for a curative instruction. It found that the prosecutor had a good faith belief that the acts of domestic violence actually occurred, whether or not she had proof.
Appellant introduced other evidence of Avie's past acts of violence. Avie's prior boyfriend testified that Avie shot him in the arm and that he saw her with a knife the day she shot him. The court sustained a relevance objection to the question whether he knew if Avie usually carried a knife. One of appellant's former girlfriends testified that Avie had threatened to kill her various times over the phone. She also said that Avie confronted her in a store and threatened to shoot her while reaching into her purse.
Marie Banks testified that when Avie came to the garage on the night of the shooting she was loud and aggressive toward appellant, who was trying to calm her down. Banks said that she left with Avie. As they walked, Banks saw Monks down the street. Avie looked in Monks' direction, then turned around and went back toward the garage. The court sustained hearsay objections when defense counsel asked Banks whether Avie said "anything that would indicate she saw [Monks]" or "anything to you to indicate that she was going back to the house." Defense counsel did not argue the objection and made no offer of proof. At the first trial, Banks had testified that Avie said, "Fuck that bitch. I'm fixin' to go back." (People v. Giles, supra, 40 Cal.4th at pp. 838-839.) This prior testimony was not brought to the trial court's attention.
The Rebuttal Case on Retrial
After the defense rested, the court allowed the prosecutor to read from appellant's former trial testimony in rebuttal. The court overruled a defense objection that "he's been cross examined as to what his prior testimony was."
Argument and Verdict on Retrial
The prosecutor did not refer to acts of domestic violence in her closing argument. The case went to the jury on a Friday after lunch. After deliberating about two hours, the jury asked for read back of appellant's testimony from the prior trial "from when he heard his name called by [Avie] until the [first] shooting." The jury recessed for the weekend, and the testimony was read to them on Monday morning. They resumed deliberations and reached a verdict that morning.
DISCUSSION
A. Cross-Examination About Prior Acts of Domestic Violence
Appellant contends that the prosecutor's cross-examination about prior acts of domestic violence constituted prejudicial misconduct, rendered his trial fundamentally unfair in violation of his right to due process, and infringed on his right to confront witnesses.
Appellant did not raise the confrontation objection at trial, and it is forfeited. A prosecutor's reference to extrajudicial statements not admitted at trial may constitute a denial of the defendant's Sixth Amendment right to confront witnesses requiring reversal (People v. Harris (1989) 47 Cal.3d 1047, 1083), but the claim must be preserved. To preserve a claim of prosecutorial misconduct for appeal, the defendant must timely, and on the same ground, make an assignment of misconduct and request that the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Appellant's 6th Amendment Confrontation Clause claim is forfeited because he raises it for the first time on appeal.
We consider appellant's due process and state law claims of prosecutorial misconduct on the merits. A prosecutor's conduct violates the due process clause of the 14th Amendment when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44.) Conduct that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (Ibid.)We conclude that the prosecutor's questions, although improper and unprofessional, did not violate the federal due process clause because they did not render the trial fundamentally unfair, and did not violate state law because they were not deceptive nor reprehensible.
The prosecutor's questions were improper because she had no basis to believe she could prove domestic violence if appellant denied it. Misconduct is assessed using an objective standard; the presence or absence of the prosecutor's subjective good faith is not determinative. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823.) With or without subjective good faith, it is improper for a prosecutor to ask questions of a witness that clearly suggest the existence of facts harmful to the defense in the absence of a good faith basis to believe that (1) the questions will be answered in the affirmative, or (2) the facts could be proved if their existence should be denied. (People v. Mooc (2001) 26 Cal.4th 1216, 1233, quoting with approval People v. Lo Cigno, supra, 193 Cal.App.2d at p. 388.)
Here, the prosecutor acknowledged that she had no basis to believe that appellant would admit the acts of domestic violence. He had expressly denied the acts in his first trial and she said she did not care whether he admitted or denied them. She also did not claim to have any admissible evidence with which to prove the acts occurred. She knew, or should have known, from Giles I that Avie's statements would be inadmissible to prove domestic violence absent a foundational showing that she never suggested she could make. Her failure to bring Giles I to the trial court's attention constituted neglect of her professional duty "to assure that the power committed to [her] care is used to further the administration of justice in our courts and not to subvert our procedures in criminal trials designed to ascertain the truth." (In re Ferguson (1971) 5 Cal.3d 525, 531.)
But her neglect did not render the trial fundamentally unfair and it did not rise to the level of deception or reprehensibility of the kind that requires reversal. Appellant relies on People v. Lo Cigno, supra, 193 Cal.App.2d 360, in which a prosecutor's pervasive questioning of several witnesses about facts of which he had no proof, coupled with insufficient proof, required reversal of a first degree murder conviction. There was insufficient evidence in Lo Cigno to support the jury's finding that the killing had been premeditated. The prosecutor insinuated, without proof, that gangsters acted in concert with defendant to plan the killing. The prosecutor asked defendant whether anyone had paid him to shoot the victim, he asked a defense witness whether he told the defendant to shoot "now," he asked witnesses whether they had arranged to be present, had discussed a plan, or had arranged for guns to be made available. He asked many other questions that elicited denials and "implied the existence of facts which the People made no effort to prove and had no reason to believe could be proved." (Id. at p. 388.) The insinuating questions pervaded the trial. The resulting unfairness required reversal. (Ibid.)
Appellant's trial was not fundamentally unfair. The prosecutor asked appellant a brief series of questions about domestic violence and never referred to her questions or his responses again. Domestic violence was not a basis of the prosecutor's theory that appellant killed Avie with premeditation and deliberation, and there was ample independent evidence that he acted with premeditation and deliberation.
The prosecutor did not quote Avie's extrajudicial statements or use them in closing argument as did the prosecutor in People v. Blackington (1985) 167 Cal.App.3d 1216. In Blackington, the court reversed a second degree murder conviction based on prosecutorial misconduct where the prosecutor repeatedly quoted an inadmissible document, physically referred to the document, and impliedly referred to it in closing argument. (Id. at p. 1223.) The defendant in Blackington claimed self-defense and testified that he was afraid of the victim because he was violent and had previously assaulted the defendant. (Id. at p. 1219.) On cross-examination, the prosecutor quoted an inadmissible transcript of a co-defendant's statement to police while asking the defendant to admit its contents. He asked, for example, "'Didn't you tell Don, "Don't worry, this will be okay. It will be cool."'" (Id. at p. 1220, fn. 7) He continued, "'You didn't tell Don that he would be okay if he just kept his mouth shut, and he would only get about six months if they caught him?'" (Ibid.)As he quoted the inadmissible document, he held it up, turned pages, highlighted and underlined it. The prosecutor also incorporated his insinuations into closing argument. (Id. at p. 1223.)
In reversing the conviction, the Blackington court emphasized that it was not deciding "whether a prosecutor's single question, the substance of which may have been suggested by an inadmissible extrajudicial statement, necessarily constitutes misconduct or violates a defendant's right to confrontation." (People v. Blackington, supra, 167 Cal.App.3d at p. 1223, fn. 10.) Here, the substance of the prosecutor's questions was suggested by Avie's extrajudicial statements but the prosecutor did not quote Avie. She asked a few questions and she moved on. She did not refer to the matter in closing argument or otherwise insinuate that appellant had been violent with Avie. Her questions were neither deceptive, reprehensible, nor pervasive.
Appellant argues that the prosecutor's questions were tantamount to contempt because the United States Supreme Court in Giles I found Avie's statements inadmissible in a retrial. Appellant's premise is incorrect. Neither the United States Supreme Court, the California Supreme Court, nor this court decided that Avie's statements were inadmissible in a retrial. In Giles I, the Court did not even decide whether Avie's statements were testimonial. It only set the foundational requirement for admissibility, explaining that "the court is free to consider evidence of the defendant's intent [to render Avie unavailable to testify] on remand." (Giles I, supra, 554 U.S. at p. 377.) Upon transfer from the California Supreme Court, we explained that our reversal was "without prejudice to the trial court's assessment of any foundational showing upon retrial." (People v. Giles, supra, (B166937, Feb. 25, 2009) at p. 7.)
Appellant also overstates Giles I when he asserts that the United States Supreme Court's "reversal indicates that the evidence of guilt of first degree murder was no[t] so overwhelming that the Supreme Court believed that the prosecution had met its burden under harmless error review." In Giles I, the Supreme Court vacated judgment and remanded for further proceedings without commenting on the prejudicial impact, if any, of the officer's testimony about Avie's statements. On transfer, we decided that the erroneous admission of the officer's testimony quoting Avie, together with the prosecutor's reliance on that testimony in closing argument, was not harmless beyond a reasonable doubt. Our conclusion has no impact here, because the officer's testimony was not admitted, Avie was not quoted by anyone in the retrial, and the prosecutor did not mention domestic violence against Avie in her closing argument. Moreover, we used the harmless beyond a reasonable doubt standard on transfer in Giles I because a confrontational violation had been established. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cage (2007) 40 Cal.4th 965, 991.) Here, none was timely asserted.
II. Use of Appellant's Prior Testimony in Rebuttal
Appellant contends that the use of his prior testimony in rebuttal violated his federal constitutional rights to due process, his right against self-incrimination, and his right to confront witnesses against him. Appellant forfeited his constitutional objections because he did not raise them in the trial court. (People v. Tafoya (2007) 42 Cal.4th 147, 166.) He did object in the trial court on the grounds that use of his prior testimony was improper rebuttal because he had already been cross-examined on it. We consider and reject that contention because the court acted within its discretion when it allowed the testimony.
After the defense rests, the prosecutor may offer rebuttal testimony only, "unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case." (§ 1093, subd. (d).) Rebuttal evidence is evidence that is made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. (People v. Carter (1957) 48 Cal.2d 737, 753-754.) We review a trial court's decision whether to allow rebuttal evidence for abuse of discretion and we will not disturb its decision absent palpable abuse. (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) There was no abuse here.
Self-defense was not an issue raised in the prosecutor's case in chief. Appellant's prior testimony was appropriate to rebut his account in the defense case of Avie's past violence and the events leading up to the shooting. On retrial, appellant significantly expanded his prior account of Avie's violent history. He added incidents (such as the stabbing of an ex-husband) and details (such as a knife in her hand when she vandalized his home) that he did not describe in the first trial. He changed the sequence of events between picking up the gun and shooting Avie, and he changed the account of his body position when shooting and the timing of closing his eyes. He added other helpful details on retrial (such as releasing the clip before handing the gun to his grandmother in order to protect her from accidental injury) and changed his testimony about the reason he left with Smith after he shot Avie. Use of the prior testimony in rebuttal may have been cumulative to parts of the cross-examination, but the court did not abuse its discretion when it allowed it. The court could reasonably conclude that confusion would be reduced if the jury heard the prior testimony uninterrupted and in context.
III. Exclusion of Defense Evidence
Appellant contends that the court erroneously excluded evidence of self-defense when it (1) did not allow Banks to testify to what Avie said when she saw Monks and returned to the garage, and (2) did not allow Avie's former boyfriend to testify whether he knew if she usually carried a knife. We disagree because appellant did not make the requisite offer of proof in the trial court, Avie's statements were hearsay not subject to any exception identified for the trial court, and the boyfriend's testimony would have been irrelevant.
A claim that evidence was wrongfully excluded cannot be raised on appeal absent an offer of proof in the trial court. (People v. Pride (1992) 3 Cal.4th 195, 235.) Appellant made no offer of proof in response to the prosecutor's objection to either line of questioning in the trial court. The trial court was within its discretion to the determine that the boyfriend's opinion about whether she carried a knife five years before the shooting had no tendency in reason to prove or disprove any disputed issue. (Evid. Code, § 210.) The questions to Banks asked for hearsay because they sought to prove the truth of the matter asserted: that Avie "saw [Monks]" and "was going back to the house." (Id., § 1200.) Appellant now argues that the statements had a non-hearsay purpose to prove Avie's angry state of mind, but he did not make this purpose known to the trial court. Neither did he bring to the trial court's attention Banks' statement in former testimony that Avie said, "Fuck that bitch. I'm fixin' to go back." Accordingly, he is precluded from challenging the exclusion on this ground on appeal. (People v. Wallace (2008) 44 Cal.4th 1032, 1059.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
Allen J. Webster, Jr., Judge
Superior Court County of Los Angeles
David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala Harris, Edmund G. Brown Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds, Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.