Opinion
B159451.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ROBINSON, Defendant and Appellant.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
Kevin Robinson appeals from a judgment (order revoking probation) imposing a three-year prison term. He contends the trial court erroneously excluded defense evidence. We agree and reverse.
In his reply brief, appellant withdrew his contention the trial court erroneously denied a continuance of the sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On October 2, 2001, appellant pleaded no contest to felonious battery on a custodial officer (case No. SA042435). The trial court suspended imposition of sentence and granted him three years of formal probation.
Thereafter appellant was newly charged with felonious battery on a custodial officer and resisting an executive officer in an unrelated matter (case No. SA045192). The court summarily revoked probation and scheduled a probation violation hearing concurrently with the preliminary hearing in the new case.
Prosecution Evidence
At the June 11, 2002 hearing, Los Angeles County Deputy Sheriff Radcliff testified he was on duty in the courthouse lockup on January 10, 2002. Appellant was in a holding cell with other inmates. At about 1:40 p.m. Radcliff saw appellant lying on the cell floor. Radcliff cleared the cell of other inmates and entered with two deputies. Appellant was on his back with his eyes open. He sat up, then quickly stood up and removed his shirt. He began walking towards Radcliff with his arms extended in front of him. Radcliff ordered appellant to "stop" and another deputy told appellant to "relax and calm down." Appellant continued to approach Radcliff until another deputy grabbed him. Appellant began yelling obscenities. He then broke free, stood within a few feet of Radcliff and swung clenched fists. The three deputies pinned appellant against the cell wall and repeatedly ordered him to "relax" and "calm down." Appellant flailed his arms. The deputies forced him onto the ground and unsuccessfully attempted to handcuff him. Appellant remained combative. He pulled Radcliffs hand toward his mouth while making "chomping noises" and grazed the deputys knuckles with his teeth. A fourth deputy arrived and appellant was restrained.
Defense Evidence
Appellant testified he was 5 feet 8 inches tall, weighed 135 pounds and suffered from epilepsy. He was in custody, housed at Wayside. Appellant had been prescribed Dilantin, which he took at bedtime to control his epilepsy. The night before the assault, he was not given Dilantin. Without the nightly medication, appellant suffered grand mal seizures and would "blank out."
Appellant had no memory of the assault described by Radcliff. He remembered being in the holding cell, talking with fellow inmates. He next recalled being handcuffed to a bed in an ambulance. Appellant did not remember having a similar in-custody seizure on June 27, 2001, during which he assaulted another officer. That incident resulted in case No. SA042435.
Following appellants testimony, defense counsel proffered the testimony of Deputy James "[t]o show that when Mr. Robinson doesnt have seizures hes a very cooperative, pleasant, law-abiding inmate. Deputy James has seen him numerous times, seen his demeanor, and knows him to be a very peaceful, placid individual." The court refused to admit the testimony, stating defense counsels offer of proof was inadequate.
At the conclusion of the hearing, appellant was held to answer (case No. SA045192) and was found in violation of probation and sentenced to three years in prison (case No. SA042435). This appeal followed on July 14, 2002.
We take judicial notice of the following proceedings in superior court involving both cases: On December 16, 2002, appellant filed a petition for writ of habeas corpus (case No. SA042435). On January 7, 2003, a jury acquitted appellant of the latest charges (case No. SA045192). On or about that date, the trial court recalled his prison sentence and reinstated his earlier probation. Appellant withdrew his habeas corpus petition. On May 5, 2003, a bench warrant was issued when appellant failed to appear at a progress report hearing, which as of this writing, is still outstanding.
DISCUSSION
This court requested supplemental briefing on: (1) whether appellant was currently a fugitive from justice and without process of the court; and (2) if he were still a fugitive, then should his appeal be dismissed.
In their letter briefs, the parties agree appellants failure to appear in superior court was apparently not a willful and purposeful effort to evade justice. According to the People, on May 29, June 5 and July 7, 2002, appellant reported to his probation officer, who neglected to so inform the court. The evidence is not sufficient to show appellant is a fugitive. We therefore consider the merits of his appeal and conclude the trial court erroneously excluded the proposed testimony of Deputy James.
See People v. Kubby (2002) 97 Cal.App.4th 619, 627; see also Penal Code section 1043.
Because we address the merits and reverse, we need not reach the Peoples assertion the trial court acted without jurisdiction to recall the sentence and reinstate probation.
At the outset, we reject the Peoples claim appellant failed to preserve his contention of evidentiary error on appeal. We are satisfied his showing was sufficient as an offer of proof under Evidence Code section 354, and thus disagree with the trial courts ruling to the contrary.
Evidence Code section 354 states in relevant part: "A . . . finding shall not be set aside, nor shall the . . . decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the [trial] court which passes upon the effect of the error . . . is of the opinion that the error . . . complained of resulted in a miscarriage of justice and it appears of record that: [& para;] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means."
In assessing appellants contention of evidentiary error, we are mindful of the applicable legal principles: As part of the due process right to a fair trial, a defendant "is constitutionally entitled to present all relevant evidence of significant probative value in [the defendants] favor." All relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. Nevertheless, trial courts are not compelled to allow "unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy." Evidence is relevant if it tends in reason to prove or disprove a disputed fact that is of consequence to the determination of the action. Relevancy is not restricted to a precise factual issue alone, but applies equally when it tends to establish a fact from which the existence of another fact in issue can be directly inferred.
People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Burrell-Hart (1987) 192 Cal.App.3d, 593, 599.
People v. Scheid (1997) 16 Cal.4th 1, 13.
People v. Marshall, supra, 13 Cal.4th at p. 836.
People v. Kronemyer (1987) 189 Cal.App.3d 314, 347.
Here, appellant presented an affirmative defense of unconsciousness through his own testimony. He testified he experienced an epileptic seizure which rendered him unconscious when he attacked the deputies and was thus incapable of committing the assault. Appellant further testified, had he been "in [his] right mind," he would never have attacked them. In rebuttal, the People maintained appellant feigned having seizures. The dispositive issue then was the genuineness of appellants claim of epilepsy.
Penal Code section 26 reads, in pertinent part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] Four — Persons who committed the act charged without being conscious thereof."
The proffered testimony of Deputy James as to appellants normally compliant in-custody behavior corroborated appellants testimony and was therefore relevant. It was also admissible as character evidence under Evidence Code section 1102, to prove he was otherwise docile and cooperative with custodial officers. The trial court erred by not admitting the testimony of Deputy James into evidence.
People v. Green (1980) 27 Cal.3d 1, 19 overruled on another point in People v. Martinez (1999) 20 Cal.4th 225, 234-235. [Relevant evidence includes evidence affecting the credibility of a witness.]
Evidence Code section 1102 provides in pertinent part: "In a criminal action, evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character."
A probationer is entitled to notice of the alleged violation, disclosure of the evidence against him, the right to be heard and to present evidence on his own behalf. Because the proffered testimony went to the heart of appellants defense, its exclusion was fundamentally unfair and he is entitled to reversal of the judgment.
Cf. Morrissey v. Brewer (1972) 408 U.S. 471, 488-489; People v. Vickers (1972) 8 Cal.3d 451, 457-458; accord, Gagnon v. Scarpelli (1973) 411 U.S. 778, 782; People v. Coleman (1975) 13 Cal.3d 867, 894.
DISPOSITION
The judgment is reversed.
We concur: WOODS, J. MUÑOZ (AURELIO), J.