Opinion
C087856
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE WHITE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16FE023927, 14F04447, 16FE001088)
Defendant Jimmy Lee White pled guilty to misdemeanor domestic violence. A jury found defendant guilty of assault with a deadly weapon, and found true the allegation that defendant personally used a firearm during the commission of his crime. The trial court sentenced defendant to an aggregate term of 15 years four months in state prison.
On appeal, defendant contends the trial court abused its discretion in admitting evidence of his prior acts of domestic violence and excluding evidence of the victim witness, Doe's, recent arrest. We conclude the court acted within the bounds of its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
Charged Acts
Doe and defendant began dating in January 2013. Defendant abused Doe, and they struggled financially.
In 2016 L. James (James) met Doe at a barbershop next to the market where Doe worked. James was 53 years old; Doe was 22. Their relationship soon became sexual. James knew about Doe's prior relationship with defendant. Doe told James defendant had been abusive. James saw evidence of that abuse himself, having seen Doe with a black eye given to her by defendant. James also knew there was a restraining order prohibiting defendant from contacting Doe, and that Child Protective Services limited defendant's conduct with the son he shared with Doe.
When Doe met James, she was transient. By October 2016, however, she was living in an apartment. James helped Doe move in; he furnished her apartment and bought food for Doe and the children. Defendant knew about James; he told Doe he did not want another man (Doe's son and Doe's little sister) around his child. On one occasion, defendant took Doe's phone away from her and used it to call James. He told James he and Doe were getting back together and Doe would not be seeing James anymore. Defendant refused to give the phone back to Doe.
About two weeks later, on November 11, 2016, James stayed the night with Doe in her apartment. The following morning they got into an argument; James gave Doe some money and left. He returned later to take Doe and the children to an indoor playground. When the kids finished playing, James took Doe and the children home.
James left Doe and the children at the apartment and went to a local bar with his friend S. Johnson (Johnson) to watch the "UFC fights." After James left, defendant called Doe and asked to see their son. Defendant and Doe initially argued but Doe ultimately agreed to let him come over to see their son.
While he was at the bar watching the fights, James talked to Doe on the phone. Doe told James defendant was at her apartment and would not leave. Doe also told James not to come over because defendant was "tripping," which James understood to mean defendant was hitting her. James was mad. He invested a lot of money and energy into getting Doe free from defendant and she invited defendant over to her apartment. James texted Doe: "daddy's coming."
James left the bar with Johnson. James was "buzzed," as he had three to five beers during the fights. James and Johnson stopped briefly at the barbershop. Johnson then followed James to Doe's apartment in a separate car; James said he wanted to get some of his things.
James and Johnson arrived at Doe's apartment complex and walked toward the front gate; they saw an unknown person give defendant a gun. No words were exchanged. Defendant walked toward James and Johnson, pointed the gun at Johnson, then shot James.
James was taken to the hospital. The bullet went through him, damaging multiple organs. He and Doe both identified defendant as James's assailant.
The People charged defendant with attempting to murder James, assaulting Johnson with a deadly weapon (including an allegation defendant personally used a firearm during the commission of the crime), and misdemeanor domestic violence inflicted on Doe.
II
Defendant's Prior Uncharged Acts
Prior to trial, the People sought to admit the following evidence of defendant's prior uncharged acts of domestic violence under Evidence Code section 1109:
Further undesignated statutory references are to the Evidence Code. --------
(1) In March 2013, Doe reported to police that her father punched defendant because the week prior defendant beat Doe so badly she ended up in the hospital. Defendant repeatedly slapped her in the face, grabbed her by the hair and threw her to the ground, punched her in the face, and began to strangle her. Doe also told police that in January 2013, defendant kicked her so hard in the "groin" it caused her vagina to bleed. And, in February 2013, defendant punched her so hard in the face it caused her eye to swell shut.
(2) In June 2014, Doe was six months pregnant. She reported to police that defendant beat her. When the police contacted Doe, her right eye was swollen and bruised, her upper lip was swollen, and she had blood on her hand from her nose bleeding. For this assault, defendant was convicted of domestic violence in August 2014.
(3) In May 2015, while waiting at the family law courthouse, defendant told Doe, "bitch, I'm gonna beat your ass." For this conduct, defendant was convicted of misdemeanor violating a restraining order.
(4) On January 14, 2016, Doe was in the hospital for a possible fractured tail bone. Defendant was there with her; he became "agitated." Defendant jumped on the hospital bed and put his hand over Doe's mouth; she could not breathe. After he took his hand from her mouth, he used his other hand to strangle her. Doe reported the assault and in March 2016, defendant was convicted of domestic violence.
The People also asked the court to allow them to impeach defendant, should he testify, with his prior convictions and with Doe's prior statements to law enforcement that defendant forced her into prostitution.
At the motions in limine hearing, defendant indicated an intention to plead to the misdemeanor domestic violence charge. Counsel and the court then discussed whether the uncharged acts would still be admissible at trial.
The People argued the evidence of defendant's prior domestic violence could be used to impeach Doe who, based on her history, was likely to recant on the witness stand. The People also argued defendant's history of domestic violence would establish his motive for shooting James under section 1101, subdivision (b) (section 1101(b)).
To establish motive, the People argued, the uncharged acts demonstrated defendant's efforts to assert his control over Doe. In particular, the prior uncharged acts exposed defendant's history of resorting to physical violence when he felt he lost control of Doe. Shooting her new boyfriend, James, was just an escalation of that violence.
Defendant argued the prior acts had no bearing on the charged acts. Defendant's history of domestic violence was never directed at anyone other than Doe, and there was never any evidence of jealousy. The prior acts, therefore, should be excluded.
The trial court agreed with the People:
"The court finds in this case that the -- based upon the information provided to the court at this time, it does appear to the court that evidence of motive under section 1101(b) can be supported by the prior incidents of domestic violence.
"The court views that the domestic violence and prior incidents thereof can be viewed as the pinnacle of evidence indicating dominion and control, if proven to be true, over the individual, in this case, . . . Doe, and that will be related -- and that is related to establishing motive in terms of confronting the new significant other of Miss Doe, which in this case is alleged to have been Mr. James, the victim of the shooting.
"I have also considered under . . . Section 352 whether there is a basis under that section for exclusion of the evidence.
"Having considered the factors under [section] 352, I do not find that - - I find that exclusion is not necessary under [section] 352 such that under the People's offer of proof, the evidence can be received under [section] 1101(b) for purposes of establishing motive with the proper instruction to the jury and as to how that may be considered."
Over defendant's "strenuous" objection, the court also granted the People's motion allowing them to impeach defendant with Doe's prior allegation that he forced her into prostitution. The court reserved its ruling on the issue of whether defendant's prior acts could be admitted to impeach Doe's credibility. Defendant pled guilty to the charge of misdemeanor domestic violence.
Later, during trial, the court ruled the People could impeach defendant with the fact of his prior convictions. However, the prior conduct evidence, admissible under section 1101(b), could not be used to impeach defendant. The court also ruled the fact of the prior convictions could be used to impeach Doe.
III
Doe's Prior Uncharged Acts
The People also moved in limine to exclude evidence that Doe was arrested in Ventura County on March 18, 2018, for domestic violence (March 2018 arrest). The charges were pending at the time the court heard the People's motion. The trial court observed that were the evidence to be admitted, the court would need to appoint counsel for Doe. Defendant indicated he did not, at that time, intend to "go[] into this area" with Doe. The court reserved ruling on the issue.
Defendant subsequently changed his mind and asked the court to rule on the issue. Following a discussion in chambers, the court indicated its tentative decision to grant the People's motion and exclude the evidence. Defendant argued the crimes with which Doe was charged were crimes of moral turpitude that went to the heart of her credibility as a witness. In particular, there was evidence in the police report that she lied to law enforcement in Ventura County, thus demonstrating that Doe's reports to law enforcement were not reliable.
Defendant also argued the court should allow the arrest in as evidence under section 1103. The arrest would serve to dispute the People's proffered motive of jealousy and, instead, support defendant's claim of self-defense by demonstrating that Doe acts violently toward her romantic partners.
The People argued admission of the charges would create a trial within a trial. Because the charges were still pending, the People would need to call in witnesses and take evidence related to the alleged criminal conduct. Moreover, there was a wealth of evidence by which defendant could impeach Doe's credibility. Doe made numerous inconsistent statements to law enforcement about her relationship with James, her relationship with defendant, and what took place the night of the shooting. Not to mention, the People argued, Doe has a prior conviction for a crime of moral turpitude by which the defendant could impeach her.
The court found the only possible basis for admitting Doe's recent arrest was for impeachment. Doe's 2013 conviction for theft, however, was already available to defendant for impeachment. Thus, the court noted "this is not a case where the requested inquiry into the 2018 arrest is the only potential prior conduct evidence for impeachment. This is a situation where the question is whether there should be additional instances added to that evidence."
The court explained further that Doe's credibility could also be impeached with the prior acts of domestic violence already admitted under section 1101(b), if she denies the prior acts of abuse occurred, as well as her numerous inconsistent statements to law enforcement. Importantly, the court noted, the recent arrest was not a conviction -- only an arrest. And, unlike the uncharged acts of defendant's that did not lead to a conviction, Doe's March 2018 arrest had no alternate basis for admissibility; it would be admissible only for impeachment purposes. The court, exercising its discretion under section 352, thus granted the People's motion and excluded evidence of Doe's March 2018 arrest.
At trial, defendant testified that he shot James in self-defense. He also denied the prior acts of domestic violence, either dismissing them outright or attempting to explain the circumstances were not as described.
Ultimately, the jury could not reach a verdict on the charge of attempted murder of James. The trial court thus declared a mistrial on that count. The jury did, however, find defendant guilty of assaulting Johnson with a deadly weapon and found true the allegation defendant personally used a firearm during the commission of his crime. The trial court sentenced defendant to an aggregate term of 15 years four months in state prison, which included sentencing on two other cases for which defendant's probation was revoked.
DISCUSSION
I
Evidence Of Defendant's Prior Misconduct Was Properly Admitted
Defendant contends the trial court erred in admitting evidence of his prior uncharged acts of domestic violence under section 1101(b) because the evidence "bore little, if any, relevance to the charged offense and, at the same time, was greatly inflammatory, prejudicing [defendant's] opportunity to obtain a fair trial." We disagree.
Evidence of prior uncharged acts of misconduct may be admitted if the acts are logically, naturally, and by reasonable inference, relevant to prove some fact at issue, such as motive or intent. (People v. Fuiava (2012) 53 Cal.4th 622, 667.) The probativeness of prior uncharged acts of misconduct on the issue of motive does not necessarily depend on similarities between the charged crime and uncharged misconduct, so long as there is a direct logical nexus between the charged crime and uncharged misconduct. (People v. Demetrulias (2006) 39 Cal.4th 1, 15; see People v. Pertsoni (1985) 172 Cal.App.3d 369, 374.)
Such evidence, however, remains subject to exclusion under section 352. (People v. Kerley (2018) 23 Cal.App.5th 513, 534.) Thus, before admitting such evidence, the trial court must exercise its discretion to determine whether the probative value of the evidence is "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 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.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion '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. ' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, as indicated in the People's proffer at the in limine hearing, the People's theory of guilt was that defendant shot James because he was angry and jealous. Doe had a new boyfriend and defendant was losing control of her; in an escalation of his history of domestic violence, defendant shot Doe's new boyfriend. Defendant, on the other hand, asserted that he acted to defend himself. He believed James was there to shoot him so he shot James first. Thus, evidence of defendant's motive was relevant to the disputed issue of self-defense.
The prior acts evidence demonstrated a pattern of defendant controlling Doe through violence. The evidence was admissible because it showed a reason for his behavior and his state of mind at the time of the shooting: anger at losing control over Doe. The evidence logically tended to prove that defendant acted with a motive and negated his claim of self-defense. (See People v. Pertsoni, supra, 172 Cal.App.3d at p. 375 ["Evidence of his motive thus was critically important in showing a reason for his criminal behavior and in rebutting his claim of self-defense"].)
These acts were not made inadmissible by section 352. This section is intended to prevent undue prejudice -- that is, "evidence which uniquely tends to evoke an emotional bias against [the] defendant as an individual and which has very little effect on the issues" (People v. Morton (2008) 159 Cal.App.4th 239, 249), not the prejudice that naturally flows from relevant, highly probative evidence (People v. Salcido (2008) 44 Cal.4th 93, 148). Defendant argues the prior acts did not involve violence to anyone other than Doe, did not demonstrate defendant's jealousy, and did not involve firearms. Therefore, he claims, the prior acts provided limited probative value that were outweighed by their prejudicial effect.
There were, however, permissible inferences the jury could make from the evidence of defendant's prior violent conduct. As discussed above, the prior acts evidence was relevant to establishing defendant's motive for shooting James. Defendant argued he shot James in self-defense. The jury could, however, infer from defendant's history of controlling Doe through violence that his violence escalated into defendant shooting her new boyfriend.
In sum, we find the court acted within its discretion in admitting the prior acts evidence as evidence of defendant's motive for shooting James.
II
Impeachment Evidence
Defendant contends the trial court erred in admitting defendant's prior convictions and the allegation he forced Doe into prostitution as impeachment evidence. He also contends the trial court erred in refusing to admit Doe's March 2018 arrest for domestic violence as impeachment evidence. We find 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 . . . section 352." (People v. Clark (2011) 52 Cal.4th 856, 931.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296.) " '[T]his court will not disturb a trial court's exercise of discretion under . . . section 352 unless it is shown the trial court exercised its discretion " 'in an arbitrary, capricious or patently absurd manner.' " ' " (People v. Homick (2012) 55 Cal.4th 816, 865.)
A
Defendant's Prior Conduct Properly Admitted As Impeachment Evidence
The records of defendant's convictions, along with Doe's reports to police officers of abuse and pimping all were admissible to impeach her trial testimony, as well as defendant's. The evidence already was admitted under section 1101(b), thus there was no undue consumption of time and the prejudice to defendant was de minimis. On this record, the court's decision was neither arbitrary nor capricious.
B
Doe's March 2018 Arrest Properly Excluded
Here, as proffered by the People at the in limine hearing, there were ample grounds on which to impeach Doe's testimony. Doe's prior conviction for theft was admitted for purposes of impeachment and she made multiple inconsistent statements to law enforcement during the investigation. Based on her history, it was also expected she would recant at trial, giving yet another opportunity to impeach her credibility.
On the other hand, to admit her March 2018 arrest, the court would have to appoint Doe counsel, and witnesses would have to be called to testify regarding the circumstances surrounding her arrest. This is precisely the kind of attenuated, prior conduct evidence that can cause a trial to devolve into a mini-trial over a witness's credibility. And, unlike defendant's prior conduct that did not result in a conviction, there were no other grounds on which to admit evidence of Doe's March 2018 arrest.
We conclude the court acted within its discretion in refusing to admit Doe's March 2018 arrest as impeachment evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.