Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Scarlett, Judge. Los Angeles County Super. Ct. No. JJ13841
Torres & Torres and Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Omar S., a minor, appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of his having committed an assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The juvenile court ordered him home on probation. Appellant contends that the juvenile court deprived him of his constitutional right to present a defense and to a fair trial by excluding evidence of the minor victim’s propensity for violence.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 23, 2006, the district attorney filed a section 602 petition alleging that appellant had committed an assault by means likely to produce great bodily injury. At the adjudication hearing, the following evidence was adduced by the prosecution.
On January 25, 2006, at approximately 3:00 p.m., Jesus S. was walking home from South Gate Middle School, when he saw appellant and appellant’s friend, David R., behind him. Appellant said that he was going to “kick [Jesus’s] ass” and pushed him. He then grabbed Jesus by the throat and began choking him, letting go only when a woman threatened to call the police. Jesus did not push appellant, get “in his face” or do anything to instigate the attack.
Jesus continued walking home, but appellant followed him and again started choking him. Appellant dropped Jesus on the grass, and Jesus grabbed appellant by his sweater. Appellant told him to let him go and kicked Jesus two or three times in the ribs. Jesus got up and started walking away. Appellant grabbed him a third time, pushed him against a gate and choked him, trying to lift him off the ground. Once again, appellant released his grip on Jesus after someone threatened to call the police.
Jesus left and went home. He had bruises around his neck, his chest was purple and his ribs hurt for about a week. When he arrived home, he told his mother what happened. The next day, she took him to school and met with the Dean and school police officer Terris Bolden, to whom Jesus reported what had happened.
The officer observed bruising on Jesus’s chest, neck and rib area. Officer Bolden took him to appellant’s classroom where Jesus identified appellant as his assailant. Officer Bolden detained appellant, Mirandized him and read him his Gladys R. questionnaire. Appellant then admitted hitting, choking and kicking Jesus because Jesus talks “a lot of smack.” The officer then arrested him.
Before the attack, Jesus had seen appellant many times at school. On one occasion, a week before the alleged incident, Jesus was playing basketball and appellant “put his feet in front of [him] and . . . threw [him] down to the floor.”
The defense introduced the following evidence. On January 25, 2006, David was walking home from school with appellant. He saw Jesus looking at appellant with a “mean face.” Appellant told Jesus to stop “telling stuff about his brother.” David “guess[ed]” Jesus got mad because he and appellant each removed their backpacks and a car horn honked. When David turned back, both boys were swinging and fighting, but he did not see who swung first. David stood back because he did not want to get involved. The car kept honking, and the boys separated and went home. David did not see Jesus and appellant fight again and did not see appellant choke Jesus or push him against a fence. He did not recall if he saw appellant kick Jesus. He saw Jesus hit appellant, but only in the body, not in the face. Appellant walked David to David’s house and then went home.
Appellant testified on his own behalf. At the time of the incident, he was walking with David to David’s house and saw Jesus. Jesus was “mad-dogging” appellant, who asked him why he was looking at him. Jesus continued looking at him, and appellant asked if Jesus had a problem. Appellant then approached Jesus and told him “You better -- stop messing with my brother.” Jesus came up to appellant’s face, and appellant pushed him away. Jesus removed his backpack and pushed appellant, who removed his backpack and pushed Jesus to the ground. A car then came by and asked if there was a problem, and the boys said no.
Appellant put on his backpack and resumed walking. Jesus was walking in front of him and kept looking at appellant, who told him to leave. Jesus was going slowly and would “stop [appellant and David] down.” Appellant pushed Jesus out of his way. Jesus then took off his backpack and began pushing appellant, who again removed his backpack and pushed back Jesus. Jesus grabbed the sleeves of appellant’s sweater, and appellant pushed him to the ground. He never choked Jesus or lifted him up by the neck, but might have intentionally kicked him, and pushed Jesus against a fence, in an effort to get loose.
Appellant denied telling Officer Bolden that he choked Jesus, but he did tell him they were in a fight. He said that Jesus acts tough and “talks a lot of smack.” Appellant admitted previously knocking Jesus to the ground when playing basketball because appellant “might have gotten pissed or something.” He also admitted that Jesus had never hit him before.
In closing argument, the defense claimed that “this case is really just about mutual combat between two young boys over incidents that are happening at school.”
After stating that the case turned upon issues of credibility, the trial court sustained the petition, declared appellant to be a ward of the court and ordered him home on probation.
DISCUSSION
On cross-examination, defense counsel asked Jesus, “Have you ever been in trouble before for fighting?” The prosecutor interjected a relevance objection, and defense counsel argued that it was relevant to whether there was “a mutual combat type of situation or self defense.” The trial court sustained the objection.
On direct examination, David testified that he knew Jesus from school, and he was his neighbor. Defense counsel asked him, “Do you know if he’s had problems with fighting before?” The prosecutor objected that it was irrelevant and called for speculation. The objection was sustained.
Appellant contends that the trial court abused its discretion in excluding evidence of Jesus’s propensity for violence, thereby depriving him of his constitutional right to due process, a fair trial and to present a defense. He argues that such evidence was relevant to whether he was acting in self-defense and in assessing whether Jesus was a credible witness. This contention is without merit.
Relevant evidence is all evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Except as otherwise provided by statute, “all relevant evidence is admissible.” (Evid. Code, § 351.) The trial court has wide discretion in determining the relevance of evidence. (People v. Deletto (1983) 147 Cal.App.3d 458, 478; People v. Warner (1969) 270 Cal.App.2d 900, 908.)
The Legislature has limited the admissibility of some relevant evidence by providing that ordinarily, “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.” (Evid. Code, § 1101, subd. (a).) The purpose of this rule “‘is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as [to] promote judicial efficiency by restricting proof of extraneous crimes.’” (People v. Haston (1968) 69 Cal.2d 233, 244.)
But the Legislature has also provided in Evidence Code section 1103, that: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Appellant claims that his victim’s character for violence is relevant to appellant’s self-defense claim. The problem is that there was insufficient evidence to support that defense. “One is entitled to use such force as is reasonable under the circumstances to repel what is honestly and reasonably perceived to be a threat of imminent harm.” (People v. Robertson (2004) 34 Cal.4th 156, 167.)
There was no evidence appellant had a reasonable and honest belief in the need for self-defense or that Jesus presented an imminent threat of harm. Jesus had never hit appellant before, and there was no indication that appellant was aware of any reputation Jesus may have had for violence or aggressiveness. Appellant never testified fearing an imminent attack by Jesus, and Jesus testified that he did not instigate appellant’s attack.
Nor does anything in the record justify the level of force appellant used. He testified that Jesus merely pushed him and pulled his sweater, but admitted that he intentionally kicked Jesus. Jesus testified that he was kicked in the ribs and choked, which testimony was corroborated by Officer Bolden’s description of Jesus’s injuries he observed. Appellant’s attack was unreasonable in light of his own testimony that all Jesus did was push him and grab his sweater.
Indeed, the physical contacts between appellant and Jesus, even by appellant’s own testimony, were initiated by him. He testified that he first approached Jesus simply because he did not like Jesus looking at him. When Jesus came up to appellant, appellant pushed him. Only then did Jesus push back. The two then disengaged after a bystander threatened to call the police. The confrontation was renewed when appellant again pushed Jesus. A defendant cannot initiate a fight and then claim self-defense, unless the defendant clearly indicates an intent to disengage. (See Pen. Code, § 197, subd. (3); see also People v. Bloyd (1987) 43 Cal.3d 333, 354 [discussing with approval a jury instruction stating that the right of self-defense is not immediately available to an assailant unless the assailant endeavors to decline further combat].) There was no evidence appellant sought to disengage. Rather, he reinitiated contact after the initial contact had been interrupted.
As there was insufficient evidence to sustain a self-defense claim, that claim did not make Jesus’s character for violence relevant. It was also irrelevant to his credibility, as he was never questioned regarding his character for violence and his past fighting.
The trial court did not err in sustaining objections to the challenged questions for still another reason. Those questions were ill-designed to elicit testimony regarding Jesus’s character for violence. Defense counsel asked Jesus, “Have you ever been in trouble before for fighting?” This question was overbroad because Jesus might have gotten into trouble for fighting when he was not the aggressor but was only defending himself. Defense counsel asked David, “Do you know if he’s had problems with fighting before?” Again, Jesus could have had problems with fighting because he was being bullied by others.
Even if the trial court erred in excluding evidence of Jesus’s character for violence or aggressiveness, that error was harmless in that it is not reasonably probable that had it been admitted appellant would have achieved a more favorable result. (People v. Watson, (1956)46 Cal.2d 818, 836; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.) Evidence of appellant’s unjustified, vicious attack was strong. David did not recall if appellant kicked Jesus, and appellant testified that he intentionally did so. Jesus testified to doing nothing before appellant kicked him in the ribs and choked him. Officer Bolden observed bruises on Jesus’s neck, chest and rib area, consistent with Jesus’s description of the beating he received. Further, the officer testified that appellant admitted hitting, choking and kicking Jesus. As the trial court viewed the matter as a credibility contest between appellant and Jesus, it is unlikely that responses to the challenged questions would have caused the trial court to reach a different conclusion. Furthermore, even if appellant was justified in using some force, the level of force used was unreasonable under the circumstances. (People v. Robertson, supra, 34 Cal.4th at p. 167 [can only use such force as is reasonable under the circumstances].)
We also reject appellant’s federal constitutional claims that he was deprived of his rights to due process, a fair trial and to present a defense. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level . . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The touchstone of due process is fundamental fairness. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1250.) While the trial court excluded evidence of Jesus’s character for violence, it did not preclude appellant from introducing other evidence that he was not the aggressor and did not viciously attack Jesus. We find no fundamental unfairness here.
DISPOSITION
The order appealed from is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.