Opinion
A144385
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE STONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51417047)
Jerry Stone was convicted by a jury of assault with force likely to produce great bodily injury and corporal injury against a cohabitant, with enhancements for personally inflicting great bodily injury on his victim. He contends the court violated his rights to due process and an impartial jury when it allowed a deputy sheriff prosecution witness to briefly serve as bailiff during the trial and that it improperly circumscribed his ability to impeach a prosecution witness with her prior arrest. His assertions are meritless, so we affirm.
BACKGROUND
The Assault
On July 22, 2014, Antioch Police Officer Mathew Summers was dispatched to Sutter Medical Center pursuant to a report of domestic violence. The victim, Gina Bellamy, told Officer Summers that she and Stone, her boyfriend, were fighting while she was taking a bath. Stone grabbed Bellamy's neck. When he let go she got him out of the bathroom and locked the door, but moments later he kicked the door open. Stone hit Bellamy on the head about seven times with a scrub brush and threatened to kill her if she did not calm down. Bellamy passed out. When she regained consciousness Stone was "freaking out because she's bleeding." He apologized repeatedly as he drove her to the hospital.
Officer Summers spoke with Stone and observed what at first appeared to be a bite mark on his hand but on closer inspection looked more like a healing scratch. Summers then spoke with Bellamy again. She was "adamant" that Stone struck her with the brush and told Summers she remembered biting his hand when he tried to grab her around the neck. She also said that Stone told her to say she fell and hit her head "so he wouldn't go back to jail." Bellamy's statements were taped and played for the jury.
Antioch Police Officer Jason Vanderpool is an investigator for domestic violence and violent crimes. On July 23, 2014, he interviewed Bellamy at her home. She told him she and Stone argued because she suspected he was doing drugs and she told him to leave. When she went into the bathroom to get away from him he forced the door open and tried to grab her by the throat. She tried to defend herself by biting his hand and he hit her with the brush until she blacked out. Bellamy confirmed that on the way to the hospital Stone told her to say she slipped and fell. This interview was also played for the jury.
Bellamy told the emergency room doctor that her boyfriend hit her repeatedly with a hard plastic shower brush. She suffered a laceration near her eyebrow that required two stiches and a deep scalp laceration that required staples.
At trial, Bellamy recanted. Stone had gotten "physical" with her once or twice during the five years they had been together. On the night in question they fought because Stone was filling out a resume instead of coming to bed. Bellamy ran a bath to calm down. While she was in the tub Stone approached her with his hand extended. Bellamy thought he was "going to do something," so she bit his hand. Then she fell backward, hit her head on the shower wall and blacked out. When she woke up Stone was carrying her into the living room. She did not remember Stone pushing or hitting her or anything that happened after she bit his hand. Stone saved her life by rushing her to the hospital.
Bellamy testified that Stone did not hit her. She only said that at the hospital because she was angry at him for not paying enough attention to her. She did not remember much of what she told the police or testified to at the preliminary hearing. She was still angry at Stone when she spoke with police officers at her house a few days later, so she lied and said he hit her with the scrub brush and told her to say she slipped in the bathtub.
Rickey Rivera, an expert in domestic violence, testified that victims who report domestic violence frequently recant their reports shortly after the abusive episode.
Richmond criminal court manger Elissa Chambers and Sheriff's Deputy Willie Armstrong testified that Stone appeared for the first day of his originally scheduled trial on October 29, 2014, and was ordered to return the next day, but did not appear on October 30. A bench warrant was issued and the court declared a mistrial. The second trial commenced on January 5, 2015.
Evidence Code Section 1109 Testimony
Pursuant to Evidence Code Section 1109, subdivision (a), "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Unless otherwise noted, further statutory citations are to the Evidence Code.
Around 5:00 a.m. on July 11, 2013, Ruth Rangel-Diaz heard a man and woman arguing, glass breaking, things being tossed and doors slamming from a downstairs apartment. A woman screamed "Somebody call 911. He just broke my door." Rangel-Diaz heard similar altercations in the downstairs apartment "[e]very other day" for "like an hour or two."
Pablo Roldan lived with Rangel-Diaz. He also heard the fight on July 11, 2013. Just after the woman asked for someone to call the police Roldan heard one more door slam and saw Stone walk away.
Antioch Police Officer Ryan Andelin responded to the 911 call. Bellamy was shaken up and holding an ice pack on her arm. She told Andelin that Stone had forced his way into the apartment after she refused to let him in. Andelin could see that the door jamb had been damaged.
Concord Police Office Kyle Colvin testified that he responded to a domestic violence dispatch on October 15, 2013. Bellamy told him Stone had followed her into the bathroom, thrown her to the ground and choked her, then carried her to their bedroom and choked her again. Bellamy seemed upset and her speech pattern was sporadic, indicating she had experienced a traumatic event.
Bellamy's 14-year-old daughter Angel testified that on November 25, 2014 Stone banged on and kicked Bellamy's back door until the door frame broke, while Bellamy hid behind her bed. He was swearing, shouting and demanding to be let in. Angel called the police.
Debra Stone was married to Stone for about 17 years. She testified about three specific domestic violence incidents during their marriage. In October 2004, Stone pulled her backward by her hair, leaving a large clump of hair on the kitchen floor. Debra left the apartment with her children and reported the incident to a police officer.
Because of the common surname, we will refer to Debra Stone by her first name to avoid confusion.
In April 2005 Stone and Debra argued after she refused to have sex with him. He slapped her face and head and grabbed her hair, then held up his fists and told her, "Look at me so I can hit you." Debra struggled to get away, but Stone hit her "a couple times" and kicked her. Their five-year-old son was in the room at the time.
In August 2008 Stone threw a television remote at Debra. The remote just missed their two-year-old's head and dented the wall. Debra ended up on the ground with Stone sitting on top of her, choking her with both hands until she thought she was going to black out. She was eventually able to get away and call the police.
Verdict and Sentence
The jury found Stone guilty of assault with force likely to produce great bodily injury (count one) and corporal injury against a cohabitant (count two) and found true associated allegations of personal infliction of great bodily injury. It was unable to reach a verdict on making criminal threats (count three), and the court declared a mistrial as to that count. Stone was sentenced to a total prison term of nine years, composed of the aggravated terms for corporal injury of a cohabitant and the associated enhancement. The court imposed and stayed a six-year term on count one and its enhancement pursuant to Penal Code section 654. Stone filed this timely appeal.
DISCUSSION
I. Deputy Armstrong's Testimony
Deputy Armstrong acted as bailiff on January 5 and 6, the first two days of Stone's second trial. He also testified briefly on January 9 about Stone's failure to appear at the first trial as evidence of his flight and consciousness of guilt. Stone contends Armstrong's dual role as prosecution witness and bailiff was structural error that violated his rights to due process and an impartial jury. In the factual context of this case, we disagree.
Background
January 5, 2015, was the first day of Stone's second trial. As the court and counsel discussed motions in limine, the prosecutor said that he might call Deputy Armstrong to testify about Stone's failure to appear at the first trial "to lay the foundation for that evidence as consciousness of guilt and flight." Defense counsel objected that it was inappropriate for Armstrong to preside over the jury in Stone's trial if he was a potential witness. After some discussion, the court invited counsel to submit authority for his objection or seek a stipulated resolution. On January 7 Stone filed a supplemental motion in limine to preclude any bailiff, courtroom clerk or other courtroom staff from testifying, citing Espinoza v. Superior Court (1994) 28 Cal.App.4th 957.
A panel of prospective jurors was sworn in at 3:15 on January 5. Jury selection began at 3:40 p.m. At 4:25 p.m. the court admonished the potential jurors for the evening At 8:48 the next morning, January 6, the court instructed Deputy Armstrong to summon the potential jurors to the courtroom. At 8:59 a.m. the jurors were summoned into the courtroom and, one minute later, advised that the trial would not proceed that day and to return the next morning. At 8:30 a.m. on January 7, Deputy Daniel Howells substituted in as bailiff for the remainder of the trial. Jury selection and opening statements concluded by 11:15 a.m..
On January 9 Deputy Armstrong testified for four minutes, from 1:27 p.m. until 1:31 p.m., about Stone's failure to appear the second day of his original trial. The only defense cross-examination established that he served as the court's bailiff briefly at the beginning of trial. The defense did not contest any aspect of his testimony.
Analysis
We are unpersuaded by Stone's contention that Deputy Armstrong's brief service as bailiff violated his rights to due process and an impartial jury. Neither Turner v. Louisiana (1965) 379 U.S. 466 (Turner) nor Gonzales v. Beto (1972) 405 U.S. 1052 (Gonzales), on which he relies, warrant such a conclusion. In Turner, the two principal prosecution witnesses were deputies who investigated the murder for which Turner was on trial and supervised the sequestered jury during the three-day trial. Both deputies freely mingled and conversed with the jurors in and out of the courthouse during the trial. One of them testified that he knew most of the jurors, made one or two new acquaintances among them, rode with jurors in automobiles to and from a restaurant, and sat at the same table while having at least two meals with jurors. On these facts, the Supreme Court held the defendant was deprived of a fair trial. "It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role [the deputies] played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors' confidence in those who were their official guardians during the entire period of the trial. And Turner's fate depended upon how much confidence the jury placed in these two witnesses." (Turner, supra, at p. 474.)
In Gonzales, the county sheriff served as bailiff throughout a one-day trial and was the key witness for the prosecution, testifying to the authenticity of a written confession he said Gonzales had dictated and signed with an "X" despite being illiterate and speaking limited English. In his role as bailiff, the sheriff conversed with jurors as they walked to a local restaurant, ate lunch with them in a private room, and brought them soft drinks during deliberations. On one occasion the court interrupted the sheriff's cross-examination so that he could escort the jurors from the courtroom.
The Supreme Court summarily reversed the conviction. In a concurring opinion, Justice Stewart, joined by Justices Douglas and Marshall, explained: "Turner, of course, did not set down a rigid, per se rule automatically requiring the reversal of any conviction whenever any Government witness comes into any contact with the jury. The Court's opinion specifically indicated that association with the jury by a witness whose testimony was 'confined to some uncontroverted or merely formal aspect of the case for the prosecution' would hardly present a constitutional problem. . . . [¶] But the court in Turner was not dealing with just any prosecution witness coming into any contact with the jury. Rather, it was dealing with crucial witnesses against the defendant who associated with the jurors as their official guardians throughout the trial. Turner established the simple principle that association of that particular sort cannot be permitted if criminal defendants are to be afforded due process of law." (Gonzales, supra, 405 U.S. at pp. 1054-1055.)
While it is unfortunate that Armstrong unnecessarily acted as both bailiff and witness, the facts of Turner and Gonzales stand in stark contrast to the limited and peripheral nature of Armstrong's testimony and his relatively minimal contact with the jurors. More apposite is People v. Turner (1983) 145 Cal.App.3d 658, in which a courtroom bailiff testified for three or four minutes about a brief conversation during which a witness who tentatively identified the defendant at trial said he was sure about his identification. The court there concluded that Turner and Gonzales did not warrant reversal. It cautioned that "[a] court on its own motion must always be careful in assessing the potential prejudice when a bailiff is called to testify in the same proceeding he is functioning as the bailiff" and, even if satisfied the testimony is more probative than prejudicial, should use another bailiff "whenever administratively possible in dealing with the jury thereafter." (Id. at pp. 677-678.) But the court found that any error in permitting the bailiff to testify was harmless beyond a reasonable doubt, because his testimony was less vital to the prosecution case than in Turner and Gonzales and his involvement was "fortuitous, arising only during trial." (Id. at p. 678.)
Similarly, in People v. Cummings (1993) 4 Cal.4th 1233, reversed on another point in People v. Merritt (2017) 2 Cal.5th 819, the bailiff overheard and was permitted to testify about a highly incriminating remark the defendant made to a codefendant during trial. The Supreme Court rejected the defendant's contention that admitting the testimony of a deputy who was involved in seating and escorting jurors and relaying juror messages denied him due process and a fair trial. The Court distinguished Gonzales and Turner because the bailiff had no role in the investigation and was not identified as a possible witness before trial; he was not a key prosecution witness; he had relatively little direct contact with the jurors and was promptly relieved of his courtroom duties when he became a witness; and the jury was admonished to judge all witnesses' testimony on the same basis and give no greater weight to the bailiff's because he had been a court deputy. Accordingly, the court concluded, neither the defendant's right to a fair trial nor his right to jury trial was undermined by the bailiff's testimony. (Id. at p. 1290-1291.)
"That's the [bullet] I put in the motherfucker." (Id. at p. 1266.)
Here, Deputy Armstrong's testimony was brief and confined to a side issue, his contact with the jurors was slight, his testimony was unrebutted and uncontroverted, and he had no involvement in the investigation of the case. Stone asserts the prosecutor "relied extensively" on Armstrong's testimony in closing arguments, but the record shows no such thing. In fact, the prosecutor only briefly addressed Stone's failure to appear at the first trial and did not mention Armstrong or his testimony. Although the court would have been more prudent to replace Armstrong as soon as the prosecutor identified him as a possible witness, it did so shortly thereafter, while jury selection was ongoing. Moreover, the prosecution's case was strong and the jury was instructed to judge each witness's testimony by the same standards. The court did not err by failing to more promptly remove Armstrong from his duties with the jury, and permitting him to testify despite his brief role as bailiff was harmless beyond a reasonable doubt.
II. Impeachment Evidence
Stone contends the court erred by preventing him from impeaching Debra Stone with conduct underlying her 2008 arrest for misdemeanor willful infliction of corporal injury. The contention rests on a mischaracterization of the court's ruling, and is meritless.
Under Penal Code section 273.5, "(a) Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment." Pursuant to subdivision (b), section 273.5 applies when the victim is a current or former spouse, cohabitant, fiancé or fiancée or someone with whom the offender has or had a dating relationship, or a parent of the offender's child.
Background
Section 1103, subdivision (b) permits admission of evidence of a defendant's violent character when the defendant has introduced evidence of a victim's violent nature. Here, the prosecutor moved in limine to admit all of Stone's prior domestic violence conduct pursuant to section 1103 "if defense counsel elicits any evidence of past violence regarding the victim, Gina Bellamy, or [section] 1109 victim, Debra Stone. If the court limits the People's evidence of prior acts of domestic violence, yet allows Defense Counsel to offer evidence of the victim[']s prior violence, the jury will be presented with a false aura of the violence in the relationship."
"[E]vidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." --------
The court ruled that defense counsel could impeach Debra Stone with the conduct underlying her 2008 arrest for violating section 273.5, an offense that involves moral turpitude. (See People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1400-1402 ["To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it willfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude"].) The prosecutor responded that the incident involved a struggle between Debra and Stone, so that if Stone used it to impeach her "that is character for violence of a victim, and I think that does open the door into the rest of [Stone's] violent conduct."
Defense counsel argued that she did not intend to use the arrest to show Debra was violent, but rather "because it's moral turpitude. So, she's going to be testifying. I should be—and we can figure out a way that I can do that. But I need to be able to ask about the moral turpitude and to make it clear that she has this arrest, but I—without somehow opening the door to all of Mr. Stone's violence. What I mean is, she shouldn't be able to testify as if she has nothing and it's, again, this false aura, right? So, I want to know what I can do, how I can ask it so that [sic]. . . ." The following colloquy ensued. "The Court: I really don't know, because if you're saying she has a character for violence, you are opening the door for the defendant's character for violence. [¶] [Defense Counsel]: I mean, what I could say, I guess, is you were arrested in 2008 for a crime of moral turpitude. [¶] The Court: You know the jury has no idea what that means. [¶] [Defense Counsel]: Okay, so, what can we come up with that I can ask her about it? Because I think I should be able to show that she's not completely clean without—I'm not trying to bring it in for her character for violence. [¶] The Court: But you are. But you are. . . . I will say that if you ask her that, it is - you are asking her propensity for violence, and that opens the door."
Analysis
To the extent that Stone argues the trial court excluded the evidence of Debra's 2008 arrest, he is wrong. The court allowed Stone to use the incident for impeachment, but warned that doing so would open the door to additional evidence of his violent conduct. The question, then, is whether the court properly conditioned Stone's use of the proposed impeachment evidence on the risk that the prosecutor would then introduce additional evidence of his own prior violent acts. There was no abuse of discretion.
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.] [¶] '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.]
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark (2011) 52 Cal.4th 856, 931-932, footnote omitted.)
Here, Stone maintains the court effectively, if indirectly, precluded him from impeaching Debra with the 2008 arrest by ruling the proffered impeachment evidence "would automatically constitute victim-character evidence under Evidence Code section 1103, and the prosecutor would thus be allowed to introduce all previously excluded evidence of [Stone's] violence" under section 1103, subdivision (b). He argues that this ruling was erroneous because section 1103 only applies to character evidence concerning the victim of the crime for which the defendant is being prosecuted—here, Bellamy—and has no application to evidence of violence against other alleged victims, such as Debra. The argument fails because the court did not base its ruling on section 1103. Rather, it reasonably rejected defense counsel's insistence that Debra's domestic violence arrest went only to her moral turpitude and had no bearing on propensity for violence. Because the arrest clearly did implicate Debra's violent nature, it was within the court's broad discretion under sections 352 and 1109 to allow the prosecutor to provide context for the 2008 arrest, should Stone choose to introduce it, by introducing further evidence of Stone's propensity for violence. "[N]o defendant 'is entitled to a false aura of veracity.' . . . 'Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." (People v. Sanghera (2016) 6 Cal.App.5th 365, 376.) And even if putting Stone to the choice could be viewed as error, it was harmless by any standard in light of the substantial "other domestic violence" evidence concerning Bellamy and Debra admitted under section 1109.
Stone's related assertion that the ruling violated his constitutional right to confront Debra on the stand is also meritless. "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) Thus, " 'not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord." ' " (People v. Hamilton (2009) 45 Cal.4th 863, 943.) The ruling at issue here was within that latitude.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.