Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F08361, 04F00924
CANTIL-SAKAUYE, J.
A jury found defendant Joseph William Hanneman guilty of felony hit and run with bodily injury. (Eh. Code, § 20001, sud. (a).) The trial court found defendant guilty of the severed charge of driving with a suspended license (Eh. Code, § 14601.1, sud. (a)) and found defendant in violation of his probation on a separate case. Sentenced to an aggregate term of three years eight months in state prison, defendant appeals. He contends the trial court improperly admitted evidence in the jury trial that his driver’s license was suspended and of his previous threats toward one of the witnesses. He also contends there was insufficient evidence to support the felony judgment. We affirm.
PROCEDURAL BACKGROUND
In March 2004, defendant piled no contest in case No. 04F00824 to inflicting corporal injury on a spouse or cohabitant. (Pen. Code, § 273.5, sud. (a).) The trial court suspended imposition of sentence and placed defendant on probation for five years.
In September 2004, defendant was charged in case No. 04F08361 with felony hit and run with bodily injury and driving with a suspended license. Thereafter, the People filed a petition for violation of probation alleging defendant had violated his probation in case No. 04F00824 by committing the offenses in case No. 04F08361.
On defendant’s motion, the trial court severed the charges in case No. 04F08361. Defendant waived his right to a jury trial on the charge of driving with a suspended license. The remaining charge, felony hit and run with bodily injury, proceeded to a jury trial.
Prior to opening statements, the prosecutor indicated he intended to introduce evidence that defendant’s driver’s license was suspended at the time of the hit and run. The trial court took the matter under submission and ultimately ruled, over defendant’s objection, that such evidence would be admissible.
The jury found defendant guilty of felony hit and run with bodily injury. The trial court then found defendant guilty of driving with a suspended license and found him in violation of his probation in case No. 04F00824.
FACTUAL BACKGROUND
As defendant pled no contest, the facts in case No. 04F00824 are taken from the probation officer’s report and the charging document.
On January 26, 2004, defendant and his girlfriend/cohabitant, L.R., got into an argument over the fact that Child Protective Services had removed their child from the home. During the argument, defendant repeatedly struck L.R. on the head and body, leaving “noticeable bumps, bruises, abrasions and a painful arm.” L.R. told responding officers she was afraid to tell them what had happened. Defendant had threatened to kill her if she cooperated with police. He told her he would kill her and her family if he went to jail or prison. L.R. stated that defendant had been physically abusive for the past year and had even pointed a loaded firearm at her.
Case No. 04F08361
At approximately 10:00 pm. on July 7, 2004, a Chevy Blazer registered to defendant struck a Hyundai Accent driven by Crystal Eon. Eon was taken by ambulance to the hospital where she was treated for multiple injuries.
R. Ray witnessed the collision. Prior to the collision, she had seen the Blazer driving too fast and “all over the place.” After the collision, she called 911 from her cell phone. While she was on the phone, she saw someone run past her vehicle and across the intersection. The area was well lit. Ray described the person as a white male in his late 20’s, approximately six feet tall and somewhat stocky. The person had “buzzed” dark hair and dark features.
Prior to trial, Ray spoke with investigators and viewed a photographic line-up. She identified defendant as the man who ran past her at the scene of the collision. Although the man she identified in the photograph looked just like the man she had seen at the collision, she was still not 100 percent certain of her identification.
At trial, Ray identified defendant as the man she had seen running past her. She was not, however, absolutely “100 percent” certain of her identification because defendant’s hair was a different color in court than it had been on the night of the collision. He also no longer had a goatee. On a scale of one to 10, with 10 being absolutely sure, Ray’s level of certainty that defendant was the man who ran past her was about eight or nine.
M.A. Straw also witnessed the collision. After the collision, he heard someone attempting to start the Blazer. He then saw a man running away from the Blazer and toward the street. The fleeing man turned back toward the Blazer and yelled something in the direction of the Blazer. Straw described the fleeing man as a white male, approximately 5 feet 11 inches, or six feet tall, approximately 170 pounds, with a lean build and a very short haircut. Straw did not recognize anyone in the courtroom as the man he saw fleeing from the scene.
M. Ashley also witnessed the collision. After the collision, he pulled over and walked toward the Blazer. The person Ashley believed was the driver of the Blazer was angrily walking around outside the Blazer. Ashley yelled at the driver from approximately 25 to 30 feet away and then went over to Eon’s car. The driver was a man with a shaved head. He could not exclude defendant as the man he saw that night.
California Highway Patrol Officer Rick Rios was called to investigate the hit and run collision. When he arrived at the scene, emergency personnel were already there. The driver of the Blazer was not at the scene but he spoke to the passenger, L.R.
L.R. was very uncooperative. She initially said she did not know who the driver of the Blazer had been, but when questioned about how that could be, she said a person named “Scott” had been driving. She refused to provide any other information. She did not give Rios a description of “Scott” and did not provide his last name. She did not provide Rios with her address and claimed she was homeless.
Rios spoke with Ray who described a man running from the scene as a white male with a shaved head, who was approximately 25 to 30 years old. Rios also talked to Straw, who provided a similar description of the man fleeing the scene. All of the witnesses described the man who fled as having a shaved head or very short hair.
Rios looked inside the Blazer and saw beer cans scattered throughout the interior. He also discovered that defendant was the registered owner of the Blazer. Rios obtained a photograph of defendant and noted that defendant looked very similar to the witnesses’ descriptions of the man who fled from the scene.
L.R., who was called as a witness by the prosecution, testified that she and defendant had been romantically involved in the past and have a child together. L.R. said that, on the morning of the collision, she and defendant had gone to their storage shed together. Around 12:00 pm., they went to pick up defendant’s cousin at the light rail station and then they all went back to the storage shed.
At approximately 5:00 p.m., while still at the storage shed, L.R. and defendant got into an argument. He gave her the keys to his Blazer and told her to leave. She left around 6:00 or 6:30 p.m. and defendant stayed at the storage shed. She went to Orange vale for dinner and then went to a bar called “Reagan’s” where she got drunk.
While at the bar, L.R. met a man who offered to take her home. He did not appear to be with any friends. She gave the man the keys to the Blazer, even though defendant was protective of his Blazer and it was unusual for her to give the keys to someone else. She had not invited the man to stay at her house, but rather, he was supposed to “drop her off.” L.R. knew the man at the bar had been drinking but she figured he was less intoxicated than she was.
After the man offered to drive her home, she blacked out or fell asleep until after the collision. After the collision, the man jumped out of the Blazer. L.R. thought he was going to check on the other driver but she never saw him again. She said the man’s name was “Scott Johnson.” She described him as approximately five feet, nine inches, with greased-back dirty blond hair shoulder length in a mullet style. She said he was in his early 30’s, had a medium build, and told her he lived in Orange vale.
L.R. spoke with a police officer at the scene, although she admitted she was not friendly. She claimed to have told the officer that the driver’s name was “Scott” and provided a physical description. Specifically, she claimed she told the officer the man’s approximate height and that he had a mullet style haircut. L.R. did not contact the police or the district attorney’s office after finding out that defendant had been arrested in connection with the hit and run. She did not provide the story about how she had been at Reagan’s bar to anyone but friends until she was contacted by defendant’s investigator.
L.R. denied that she lied for defendant at the scene because she was afraid of him. In fact, she denied she had ever been afraid of him in the past. She admitted she told police in January 2004 that defendant had threatened to kill her if she cooperated with police about anything that had to do with him, but she regretted reporting that. She also admitted she told police at that time that defendant said he would kill everyone she knew if he went to jail or prison. She claimed, however, that she was not afraid of defendant at that time and she was not afraid of him now.
G. My rick testified that he was an employee at the storage facility where defendant had his storage locker. He remembers one day, some time around July 7, 2004, at the storage facility hearing a man and a woman yelling, screaming and swearing. This occurred in the middle of the day. Earlier that day he had seen a truck, two people and a lot of belongings in front of a storage unit. Later that day, he saw only one person, and the truck was gone. The following morning, he saw a man at the facility who looked tired and disheveled, as if he may have spent the night there.
DISCUSSION
I.
The prosecutor moved in liming to introduce evidence that defendant’s driver’s license was suspended at the time of the hit and run. He stated he intended to introduce this evidence to establish motive and, as a result, identity. Specifically, the prosecutor argued a person whose license is suspended has a motive to flee the scene of an accident and, therefore, defendant would have had a motive to flee the scene.
Defendant objected to the introduction of this evidence on the grounds that it was not relevant and its probative value under Evidence Code section 352 was limited. The trial court ruled that the evidence would be admissible. Accordingly, the jury was told the parties had stipulated that defendant’s driver’s license was suspended at the time of the collision, that he knew his license had been suspended, and that it had been suspended due to defendant’s failure to pay a fine.
Further predesignated statutory references are to the Evidence Code.
Defendant contends the trial court improperly admitted the evidence that his driver’s license was suspended. He argues the evidence was inadmissible pursuant to sections 1101 (evidence of character to prove conduct) and 352 (discretion of court to exclude evidence).
With respect to defendant’s contention that the introduction of such evidence was prohibited by section 1101, his contention fails for at least two reasons. First, the claim is forfeited because defendant did not object on this ground at trial. (§ 353, sud. (a).) Second, even assuming (which we do not decide) that the evidence that defendant’s driver’s license was suspended on the date of the collision could be considered “character evidence,” its admission was not prohibited by section 1101 in this case.
Section 1101, subdivision (a), provides in relevant part: “Except as provided in this section . . ., evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” However, “[n]nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive . . . intent . . .) other than his or her disposition to commit such an act.” (§ 1101, sud. (b).) Since the evidence at issue was not admitted to show bad character or a propensity to commit the crime charged, but rather, to show motive and identity, it was admissible under section 1101.
We now address defendant’s argument that the evidence should have been excluded as irrelevant and cumulative under section 352.
“Under [] section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of its discretion under section 352 “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Ibid.; see People v. Tran (1996) 47 Cal.App.4th 759, 771.)
Here, the trial court found the evidence “significant and probative on the motivation [for fleeing the scene] which, . . ., relates back to identity.” The trial court further found the probative value of the evidence was not outweighed by its prejudice. We find no abuse of discretion.
The prosecution had to prove that defendant was the driver of the Blazer and, after the collision, he failed to either render aid or to give his pertinent information to an officer or the other driver involved in the collision. (Eh. Code, § 20001; People v. Nicobar (1991) 235 Cal.App.3d 1504, 1509.) Evidence that defendant’s driver’s license was suspended helped establish a motive on defendant’s part to leave the scene of a collision without presenting identification, as the driver of the Blazer did in this case. Thus, as the trial court stated, the evidence related back to the possible identity of the driver.
Defendant argues that, even if the suspension of his driver’s license was relevant to establish a motive to flee from the scene, such evidence should have been excluded as cumulative because another motive had already been established by the evidence--the numerous beer cans scattered throughout the Blazer. We disagree. The evidence was not cumulative. Defendant’s argument ignores that motive to flee was only relevant to establish the identity of the defendant as the driver. Motive is not an element of the offense. If the beer cans provided the driver a motive to flee, such motive would not be specific to defendant but would apply to any driver and, therefore, not be relevant to the issue of identity. The fact that defendant had another reason to flee which was more specific to him, i.e., he was driving with a suspended license, was how the motive evidence was probative of his identity. Defendant was free to dispel that inference of identity by arguing to the jury that the reason the driver likely fled was because of the beer cans. In any event, the evidence that defendant’s driver’s license was suspended was not likely to confuse the jury or consume an undue amount of time. Indeed, it was established with a three sentence stipulation.
Finally, the only possible prejudice, other than that inherent in the probative value of the evidence, was that the jury would know defendant had failed to pay some unstated fine. This is not the type of evidence which “‘uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” (People v. Bolin (1998) 18 Cal.4th 297, 320.) Defendant points to no other prejudice flowing from the evidence.
The trial court’s finding that the evidence’s probative value substantially outweighed the risk of undue prejudice was not an abuse of discretion.
II.
Defendant also contends the trial court improperly admitted the evidence of his prior threats to L.R. He argues the evidence “was admitted for no purpose other than to present bad character evidence” against him. We disagree.
During her testimony, L.R. said defendant was not the driver of the Blazer and she had so informed Officer Rios. When asked if she had lied to Rios because she was afraid of defendant, she said she had not and that she was not afraid of defendant. She also said she had never been afraid of defendant, even in the past.
Over defendant’s objection, the prosecutor then questioned L.R. about threats defendant had made to her in the past, including threats to kill her if she ever cooperated with police with respect to anything having to do with him, and threats to kill her and everyone she knows if he ever went to jail or prison. The evidence was offered to demonstrate L.R.’s lack of credibility due to her bias and motive to lie on behalf of defendant.
Defendant argues, as he did at trial, that this evidence was not relevant, grossly prejudicial, and prohibited by section 1101. His argument fails. The evidence of his prior threats was not offered to prove his conduct on a specified occasion so as to be inadmissible under section 1101. It was offered to impeach L.R.’s credibility.
Section 780 (general rule as to credibility) provides, “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.”
The evidence of defendant’s prior threats to L.R. was evidence of the existence of bias, interest, or other motive to testify untruthfully. L.R. had a motive to be untruthful from the time of the collision through trial--defendant had threatened to kill her if she ever cooperated with the police regarding anything to do with him and had threatened to kill her and everyone she knows if he ever went to jail or prison. Thus, the evidence was relevant and admissible under section 780.
Citing People v. Yeats (1984) 150 Cal.App.3d 983 (Yeats), defendant contends that the admission of evidence under section 780 was improper because the prosecution did not meet the prerequisite that the witness’s testimony was inconsistent or “otherwise suspect.” We disagree.
As Yeats discusses, presenting evidence of threats against a witness as impeachment of that witness is based on the theory that it shows a bias, interest, or other motive for the witness not to tell the truth or reflects on the witness’s “‘attitude toward the action . . . or the giving of testimony.’” (Yeats, supra, 150 Cal.App.3d at p. 986.) “[T]he focus of the inquiry is on the witness’[s] state of mind, not the defendant’s conduct.” (Ibid.) Thus, “the prosecution must first establish the relevance of the witness’[s] state of mind by demonstrating that the witness’[s] testimony is inconsistent or otherwise suspect.” (Ibid.)
As in Yeats, L.R.’s testimony was suspect. Her testimony was significantly in conflict with every other witness at the scene. Each of the other witnesses described a man who looked like defendant--approximately six feet tall with very short hair. L.R., however, said the driver was five feet nine inches tall with blond shoulder length hair. She was uncooperative with the officer at the scene and even after defendant was arrested for this felony she never contacted law enforcement with her story. And, only after a defense investigator contacted her did she provide a suspect scenario wherein she, supposedly drunk, let a less drunk stranger she met in a bar drive her home in defendant’s Blazer, which even she admitted she would not normally do. Moreover, her story sounds even more implausible to the extent it implies that, since the man was not with friends and was supposed to “drop her off” and not stay at her house, this man would then drive off in defendant’s vehicle. Then, she testified she did not even tell defendant, who was very protective of his Blazer, what had happened to his Blazer until several months after the collision. Thus, as in Yeats, L.R.’s “credibility was a material issue and that it was therefore proper to admit evidence tending to show [s]he was fearful, thereby providing a motive not to tell the truth.” (Yeats, supra, 150 Cal.App.3d at pp. 986-987.)
Finally, defendant argues that the prosecutor called L.R. to testify for the sole reason of providing a pretext to present evidence of defendant’s “bad character.” Not so. As the Attorney General points out, the prosecutor explained his quite valid reason for calling L.R. to testify: “Miss L.R. is a passenger in a car. If you knew, ladies and gentlemen of the jury, that there was a passenger in this car and you never met her and you never heard from her, how weird would that be? She’s the only person who knows who the driver is. So we called her. And she -- Her prior statements indicated that the [d]defendant wasn’t the driver. And I knew that. [¶] But it’s important for you to hear from the passenger in this car. And there’s always hope that when somebody comes into this hallowed hallway and comes into the courtroom and sees the 12 or 14 of you in our case, and swears to tell the truth, that they just might do it.” Furthermore, L.R.’s suspect testimony created the inference that she was protecting someone, and if not herself then, most likely it was defendant.
In sum, the trial court did not err in admitting evidence of defendant’s prior threats to L.R. As we have concluded the trial court properly admitted the evidence pursuant to section 780, we reject likewise defendant’s claim of a due process violation. (See People v. Lewis (2006) 39 Cal.4th 970, 990, fen. 5.)
III.
Defendant also contends there was no substantial evidence of identity to support the finding that he was the driver of the Blazer. He labels the jury’s verdict “speculation” and emphasizes the fact that L.R. said defendant had not been driving and provided what he describes as a plausible story about the argument at the storage shed. He further emphasizes that the storage facility employee partially corroborated L.R.’s story. We do not, however, reweigh the evidence when assessing its sufficiency. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- ire., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55; see In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.) As we described the ample evidence supporting the finding that defendant was the driver in the factual background, we need not repeat it here. Defendant points out, however, the absence of a positive identification of him as the driver.
It is not necessary that the identification of defendant as the perpetrator of the crime be made positively or in a manner free from inconsistencies. (People v. Prim (1953) 121 Cal.App.2d 466, 468.) Positive identification, free from doubt, is not required. (People v. Jackson (1960) 183 Cal.App.2d 562, 568.) Any weakness of the identification, discrepancies in the testimony, or uncertainties of witnesses in giving their testimony are matters solely for the observation and consideration of the jury. (Id. at p. 567.)
Ray’s identification of defendant from the photographic line-up and at trial, particularly considering other evidence such as the other witnesses’ descriptions, that defendant was the owner of the Blazer, and L.R.’s suspect testimony that appeared to be a cover-up for defendant, was sufficient evidence of defendant’s identity. Ray’s statements that she could not say she was absolutely or 100 percent certain was a matter for the jury’s consideration.
Thus, we conclude there was substantial evidence presented at trial for the jury to conclude that defendant was the driver of the Blazer. Accordingly, and for these same reasons, there was substantial evidence for the trial court to find defendant had been driving with a suspended license, and for the trial court to find by a preponderance of the evidence that defendant had violated his probation by committing the charged crimes.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., HULL, J.