Opinion
C085571
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. PATRICK TIMOTHY ROYSTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17F1742)
A jury convicted defendant Patrick Timothy Royster of indecent exposure, and he admitted a prior conviction for the same crime. The trial court sentenced him to two years in prison.
Defendant now contends the trial court (1) violated his constitutional confrontation and due process rights by quashing his subpoena for a witness's mental health records, (2) abused its discretion by limiting the evidence of the witness's prior convictions and only allowing, for purposes of impeachment, the witness's most recent felony conviction, (3) improperly limited the defense's cross-examination of the witness, (4) abused its discretion by refusing to instruct the jury that accusations are easy to make but hard to disprove, (5) committed cumulative error, and (6) erred in admitting his prior conviction for indecent exposure as propensity evidence under Evidence Code section 1108.
Defendant forfeited his constitutional challenges to the quashing of his subpoena for mental health records because he did not assert the challenges in the trial court, and the remainder of his claims lack merit. We will affirm the judgment.
BACKGROUND
V.P. was walking near a liquor store in Redding when he observed defendant lying on the sidewalk with his pants unbuttoned and unzipped. Defendant was masturbating, moving his right hand up and down on his erect penis. V.P. called 911 and reported defendant's actions.
The owner of the liquor store heard a commotion outside the store. She went outside and someone told her a person was masturbating. She walked over to where a group of people had gathered and she yelled at defendant. She did not see his penis because he was covered by a coat when she approached him.
Defendant left the area and was later apprehended by Redding police officers. He denied masturbating or exposing himself. But V.P. identified defendant as the man he had seen masturbating. One of the officers noticed that defendant's pants were unzipped and partially down and that he was not wearing underwear.
A jury convicted defendant of indecent exposure. (Pen. Code, § 314, subd. (1).) In a bifurcated proceeding, defendant admitted he had a prior conviction for indecent exposure in 2008. The trial court sentenced him to a middle term of two years in prison.
DISCUSSION
I
Defendant contends the trial court violated his constitutional confrontation and due process rights by quashing his subpoena of witness V.P.'s mental health records.
During jury selection, prospective juror R.J. told the trial court that one year before trial she had interactions with V.P. in her role as a student nurse in a mental health facility. She worked at the facility once a week for six hours over the course of four weeks. She said: "Based on some of the interactions that I had with him and the things that he says, and knowing truths and untruths of some of the things -- sorry, I don't know how in depth I'm allowed to go for HIPAA reasons." She added: "I do know some of the, maybe, ramblings of -- it's hard to draw the line on what could be truth with that one." R.J. did not serve on the jury.
Later the same day, defense counsel issued a subpoena duces tecum to Shasta County Mental Health for V.P.'s mental health records, "including, but not limited to diagnoses, treatment plans, prescription medications, and any records relating to truthfulness or dishonesty." The trial court held a contested hearing on the subpoena before the jury was sworn in. In addition to the parties in this case, county counsel represented the county and opposed enforcement of the subpoena. Defense counsel explained she issued the subpoena to see if there was anything in V.P.'s mental health records relevant to V.P.'s reputation for truthfulness. She did not intend to introduce his mental health records, but she intended to call any nonmedical personnel, as revealed by the mental health records, who could testify that V.P. has a reputation for not being truthful. Defense counsel did not cite constitutional authority in support of the subpoena.
County counsel argued the county had no authority to disclose the records unless the patient authorized disclosure (Welf. & Inst. Code, § 5328, subd. (a)(2)) or a court ordered the county to disclose the records (Welf. & Inst. Code, § 5328, subd. (a)(6)). County counsel also asserted the psychotherapist-patient privilege (Evid. Code, § 1014) and asked that if the trial court was not going to quash the subpoena, it conduct an in camera review of the records before disclosing them.
The trial court quashed the subpoena, stating that it sounded like a fishing expedition on the part of the defense and noting there was not enough information to support an in camera review of the mental health records.
Defendant now asserts that quashing the subpoena duces tecum violated his constitutional confrontation and due process rights. But because he did not assert those constitutional issues in the trial court, he has forfeited appellate review of the issues and we decline to consider the matter. (People v. Partida (2005) 37 Cal.4th 428, 435; People v. Thornton (2007) 41 Cal.4th 391, 427; People v. Chaney (2007) 148 Cal.App.4th 772, 778-779.)
II
Defendant next contends the trial court abused its discretion by limiting the evidence of V.P.'s prior convictions and only allowing, for purposes of impeachment, his most recent felony conviction.
Before trial, the prosecutor moved in limine to exclude evidence of V.P.'s prior misdemeanor and felony convictions, including the following felony convictions: indecent exposure in 1988 (North Carolina), forgery of an instrument in 1991, larceny of a firearm in 1991, and petty theft with a prior in 2004. V.P. also had a misdemeanor conviction for threats, trespass, and driving with a revoked license in 1998. The trial court excluded all but the 2004 felony conviction for petty theft with a prior because the other prior convictions were too remote. The trial court added that admitting V.P.'s 1988 indecent exposure conviction would result in an undue consumption of trial time and would confuse the jury because defendant was charged with the same crime.
Subject to the trial court's discretion under Evidence Code section 352, a witness's prior felony convictions for crimes involving moral turpitude are admissible to impeach. (Evid. Code, § 788; People v. Green (1995) 34 Cal.App.4th 165, 182 (Green).) Prior misdemeanor convictions can be admissible for impeachment as well. (See Evid. Code, §452.5; People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) We review for abuse of discretion a trial court's decision whether to admit prior felony convictions for impeachment purposes. (Green, at pp. 182-183.) " 'A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' [Citation.]" (Ibid.)
In deciding whether to exclude impeachment by prior conviction, the trial court may consider whether the prior conviction reflects adversely on an individual's honesty or veracity and the nearness or remoteness in time of a prior conviction. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).)
Defendant contends the trial court abused its discretion by excluding evidence of V.P.'s felony convictions in 1988 and 1991. Considering the Mendoza factors and deferring to the trial court's discretion, we cannot say that it abused its discretion in precluding all but the most recent prior conviction. While V.P.'s prior felonies were crimes of moral turpitude bearing on V.P.'s credibility, the convictions occurred 26 or more years before trial. The remoteness in time of the prior convictions diminished their relevance. (See People v. Burns (1987) 189 Cal.App.3d 734, 738 [20-year-old conviction "meets any reasonable threshold test of remoteness"].)
We note that defendant proffers no case in which an appellate court found that the trial court's exercise of discretion under Evidence Code section 352 to exclude some of the prior convictions as too remote was an abuse of discretion. Instead, defendant argues that, considering the trial court's quashing of the subpoena for V.P.'s mental health records, it became more important to admit V.P.'s prior convictions. But whether to quash the subpoena and whether to allow multiple prior convictions were two separate issues.
Defendant highlights the trial court's exclusion of V.P.'s prior 1988 conviction for indecent exposure. However, as the trial court noted, there was nothing presented to the trial court to support an inference that because V.P. had a prior conviction for indecent exposure, he was lying about the circumstances of this case. Yet defendant reiterates his trial court claim that "it was prejudicial to disallow [defendant] to impeach the only witness with a prior indecent exposure conviction while entering [defendant's] prior indecent exposure conviction into evidence." Again, there is no self-evident support for this statement. The admission of defendant's prior conviction for indecent exposure was to show his propensity for such conduct, while there is no similar reason to admit V.P.'s prior conviction for indecent exposure suffered almost 30 years before trial in this case, particularly when the jury was able to consider V.P.'s 2004 felony conviction for petty theft.
The trial court's exclusion of two of V.P.'s prior convictions was not an abuse of discretion because the prior convictions were remote and the trial court allowed the defense to introduce evidence of V.P.'s most recent prior felony conviction. (Green, supra, 34 Cal.App.4th at p. 182.)
III
Defendant further contends the trial court improperly limited the defense's cross-examination of V.P. He claims it was an abuse of discretion that impeded his right to present a defense.
Defendant cites several evidentiary rulings made by the trial court concerning defense counsel's cross-examination of V.P.:
1. After V.P. testified that he was offended by defendant's actions, defense counsel argued to the trial court that this answer opened the door to questioning V.P. about his 1988 conviction for indecent exposure or whether V.P. had engaged in similar conduct. The trial court denied the request to cross-examine on those subjects because V.P.'s prior conviction and actions were not relevant. While we might be able to conceive of a possible argument connecting V.P.'s testimony with his prior conviction, here defendant fails to support this particular challenge with specific argument or citation to authority. Accordingly, defendant forfeited appellate review of the issue. (See City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463 (Reddy) [failure to cite pertinent authority concerning evidentiary issues forfeits appellate consideration of issue].)
2. Defense counsel asked V.P. what business he was coming from when he observed defendant exposing himself. The prosecutor objected on relevance grounds, and the trial court sustained the objection. Defendant does not provide specific argument or authority that sustaining the relevance objection was an abuse of discretion, and, therefore, defendant forfeited appellate review of the issue. (See Reddy, supra, 9 Cal.App.5th at p. 463.)
3. Defense counsel asked V.P. whether he was staying at the Ponderosa Inn. V.P. responded that he was placed in temporary supportive housing at the Ponderosa Inn, but the prosecutor objected based on relevance. The trial court did not rule on the objection, but instead asked V.P. whether he was living at the Ponderosa Inn. V.P. replied that he was. The trial court did not sustain the objection or strike testimony, so there is nothing here to review. (See Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369 (Charisma R.) [nothing to review when evidentiary ruling not made].)
4. Defense counsel asked V.P. if he had ever seen someone in public do what defendant was doing. The prosecutor objected on relevance grounds, and the trial court sustained the objection. Defendant provides no specific argument or authority that sustaining the relevance objection was an abuse of discretion, and, therefore, defendant forfeited appellate review of the issue. (See Reddy, supra, 9 Cal.App.5th at p. 463.)
5. Defense counsel asked V.P. about the length of defendant's penis. The prosecutor objected on relevance grounds, and the trial court sustained the objection on relevance and speculation grounds. Defendant provides no specific argument or authority that sustaining the relevance objection was an abuse of discretion or that the trial court abused its discretion by excluding the evidence as speculation, and, therefore, defendant forfeited appellate review of the issue. (See Reddy, supra, 9 Cal.App.5th at p. 463.)
6. Defense counsel asked V.P. if he could see the shaft of defendant's penis in addition to the head of the penis. The prosecutor objected on relevance grounds. The trial court asked V.P. if he could see any of the shaft of defendant's penis, and V.P. responded, "At one certain point, yes." The trial court did not sustain the objection or strike testimony, so there is nothing here to review. (See Charisma R., supra, 175 Cal.App.4th at p. 369.)
Defendant cites authority for the propositions that the trial court's exclusion of evidence is subject to an abuse of discretion standard on appellate review (People v. Vieira (2005) 35 Cal.4th 264, 292) and that a trial court's exercise of discretion will be upheld on appeal unless the trial court acted in a patently absurd manner (People v. Ledesma (2006) 39 Cal.4th 641, 705). But he does not rely on authority specific to the issues raised in the trial court to support his argument that limiting cross-examination of V.P. impeded his ability to present a defense.
The trial court made several rulings on evidentiary matters. While defendant cites those rulings, he fails to present argument or authority that each of them was an abuse of discretion. Accordingly, defendant fails to establish on appeal that the evidentiary rulings were an abuse of discretion resulting in a miscarriage of justice.
IV
Defendant argues the trial court abused its discretion by refusing to instruct the jury that accusations are easy to make but hard to disprove.
The proposed instruction was based on People v. Merriam (1967) 66 Cal.2d 390 (Merriam). In that case, the California Supreme Court held: "[O]ne charged with violation of section 314 of the Penal Code should be afforded the protection of [this] cautionary instruction, and . . . failure to so instruct constitutes error -- regardless of whether or not the instruction is requested. [Citation.]" (Id. at p. 395.) The trial court here denied the request for the instruction.
As the trial court observed and defendant acknowledges, the California Supreme Court overruled Merriam in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882. Nevertheless, defendant argues the instruction should have been given because Merriam was overruled to protect victims and V.P. was not a victim but instead simply an observer. But defendant provides no authority for this argument and therefore forfeited appellate consideration of the contention. (See Reddy, supra, 9 Cal.App.5th at p. 463.) In any event, the trial court did not abuse its discretion by refusing to give the now-disfavored jury instruction.
V
Defendant contends the asserted errors cumulatively require reversal even if reversal is not required individually. Having found no error, we conclude there is no accumulation of prejudice.
VI
Defendant contends the trial court abused its discretion by admitting defendant's 2008 conviction for indecent exposure as propensity evidence under Evidence Code section 1108.
Evidence Code section 1108 provides that, in a prosecution for a sex offense, evidence of the defendant's prior sex offenses is admissible to establish the defendant's propensity to commit those crimes, so long as the evidence is not inadmissible under Evidence Code section 352. (People v. Lewis (2009) 46 Cal.4th 1255, 1286.) There is "a strong presumption in favor of admitting sexual assault evidence under Evidence Code section 1108 to show propensity to commit charged crimes. [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 62.) Indecent exposure is a sexual offense within the meaning of Evidence Code section 1108. (Evid. Code, § 1108, subd. (d)(1)(A).)
Charged with indecent exposure with a prior conviction for the same offense, defendant moved to bifurcate the trial of his prior conviction from the trial of the current charges. The trial court noted that the prior conviction might be admissible under Evidence Code section 1108, which would negate the benefit of bifurcating the trial of the prior conviction. The prosecutor said that she had not read the police report leading to the prior conviction, so she did not know the facts of that case and would only seek to introduce the fact that defendant was convicted of indecent exposure without going into the facts of that case, citing People v. Wesson (2006) 138 Cal.App.4th 959, 968-969, which held that the prosecution may introduce the fact of a prior conviction under Evidence Code section 1108 without producing testimony concerning the circumstances leading to the conviction. The trial court told counsel that it was inclined to allow evidence of the fact of the prior conviction under Evidence Code section 1108. Ultimately, the trial court ruled that the fact of the prior conviction was admissible under Evidence Code sections 1108 and 352.
After the ruling allowing admission of the prior conviction under Evidence Code sections 1108 and 352, the parties stipulated that defendant was convicted of indecent exposure (§ 314, subd. (1)) on August 8, 2008, in Contra Costa County. But the defense persisted in its request to bifurcate the trial of the prior conviction from the trial of the current charges. The trial court granted the motion to bifurcate.
Defendant now asserts that admitting the fact of the prior conviction for indecent exposure was an abuse of discretion because it should have been excluded under Evidence Code section 352. Specifically, he argues (1) admitting the fact of the prior conviction nullified the benefit of bifurcating the trial on the prior conviction and (2) the fact of the prior conviction would have the effect of corroborating V.P.'s testimony that defendant indecently exposed himself.
As to the first argument, defendant offers no authority for the proposition that prior conviction evidence that would be admissible in the trial of the current charges under Evidence Code sections 1108 and 352 must be excluded if it would nullify the benefit of bifurcation. And we know of none. In any event, defendant insisted on bifurcation even after the trial court admitted the prior conviction under Evidence Code sections 1108 and 352 and the parties stipulated that defendant was convicted of indecent exposure. He cannot now complain that his request was inconsistent with the court's prior ruling.
The second argument is also without merit. The point of propensity evidence is to support an inference that defendant committed the current offense. As the trial court properly instructed the jury in this case, "you may, but are not required to, conclude from [the prior conviction] evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit indecent exposure, as charged here. That conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of indecent exposure . . . . The People must still prove the charged crime beyond a reasonable doubt." (See CALCRIM No. 1191a.) Therefore, the corroborating effect of the fact of the prior conviction to V.P.'s testimony was not unduly prejudicial.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.