Opinion
A131704
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ROBERT ANGELI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. A SCR591860)
A jury found defendant guilty of robbery (Pen. Code, § 211) and conspiracy to commit robbery (§ 182, subd. (a)(1)). On appeal, defendant contends that the lower court violated his constitutional rights under the Sixth and Fourteenth Amendments by limiting his cross-examination of a witness. He also claims that the court violated his Sixth Amendment right to confront a witness against him when it excluded information regarding a witness's probationary status. Finally, defendant asserts the cumulative effect of these errors warrants reversal of his convictions. We are not persuaded by defendant's arguments and affirm the judgment.
All further unspecified code sections refer to the Penal Code.
BACKGROUND
On January 14, 2011, an amended information was filed charging defendant with one count of robbery (§ 211) and a second count of conspiracy to commit robbery (§ 182, subd. (a)(1)). Trial before a jury began on January 19, 2011.
The original felony complaint against defendant was filed on October 22, 2010.
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The evidence at trial showed that on August 19, 2009, Wayne William Glosser decided to rob Bali Liquor in Cloverdale. Glosser was a former employee of the store and knew its layout and the location of the money. He testified that he needed money to support his drug addiction and planned to rob the store using a crowbar as a "scare tactic."
About 45 minutes prior to the actual robbery, Glosser went to a barbeque where he knew he could find defendant. Defendant and Glosser entered a trailer on the property and smoked methamphetamine while Glosser told defendant about his plans for the robbery. He asked defendant to close and guard the front door while he was robbing the clerk inside the store. Initially, defendant indicated that he did not like the idea but, according to Glosser, he quickly agreed to help when Glosser promised him $20 for his participation. Glosser testified that defendant agreed "in words" to participate in the robbery and said, "Yea[h], I'll go with you to the store." They agreed to meet back at the trailer after the robbery and, at that time, Glosser would pay defendant the $20. The two of them then walked to the store.
When they arrived at the store, Glosser looked around and repeated to defendant what his responsibilities were. Defendant had a hearing problem, but Glosser stated that defendant did not appear to have any trouble hearing him. Glosser noticed that the front door of the store was open when he proceeded to the back door. Glosser disguised himself and entered the back door of the store. He saw defendant at the front door and Jatinder Parmar, the owner of the store, inside. Glosser had the crowbar hanging half out of his sleeve. He asked Parmar to open the register and demanded money; she refused and locked the register with the key. Glosser went to the cash box, which was connected to the counter. He ripped off the top of the cash box and grabbed the $150 inside it. He then ran out the back door. He hid the crowbar and his clothes in the alley.
While Glosser was robbing the store and defendant was standing in front of the store, Edith Yadira Granados Hernandez (Granados) and her boyfriend, Gustavo Herrera-Sanchez (Sanchez), walked up to the store. Granados spotted defendant speaking on his cell phone outside the closed front door of the liquor store. Granados and Sanchez walked by defendant, opened the front door, and entered the store. Granados heard the woman in the store yelling at a man dressed in dark clothing to go away. Granados grabbed Sanchez and said that they should leave; they both ran outside. Granados asked defendant to call the police because a robbery was occurring inside the store. Granados and Sanchez ran to the corner of the street, but Granados returned to the store because she did not know if defendant had called the police; she was worried about the woman in the store. Granados heard defendant tell the person on his cell phone that he had to go because they were robbing the store and he had to call the police. She then saw defendant walk across the street as she ran in a different direction towards the police station.
Defendant returned to the property where he was to meet Glosser. After Glosser went home and changed his clothing, he went to the trailer and gave defendant $20. At some point, the police arrived. They pulled Glosser out of the trailer and searched him. Glosser told the police that he had been somewhere else at the time of the robbery.
Three or four days after the robbery, defendant and his friend of six months, Matthew Allyn Glass, were talking about the robbery while smoking methamphetamine and drinking alcohol. Glass testified that defendant disclosed his participation as the lookout in the robbery and reported that he received $20 "out of the deal."
On August 27, 2009, Officer David Johns contacted Glass. Johns asked him if he knew anything about the robbery and told him that he might be a suspect. He did not threaten him with arrest. Glass told him what defendant had reported to him a few days earlier about the robbery of the liquor store. At some point, Johns concluded that Glass had nothing to do with the robbery.
At trial, Glass testified that he was using methamphetamine in August 2009. However, he claimed that he was not currently abusing drugs and had been clean and sober since January 27, 2010.
On August 28, 2009, Officer Johns saw Glosser walking down the street and asked him about the robbery at the liquor store. Glosser confessed to the robbery and showed him where he had hidden the crowbar and his clothes. The officer asked Glosser why defendant was outside the store and Glosser told him that defendant was guarding the door.
Subsequently, Glosser pleaded no contest to the robbery. He asserted that he was testifying in defendant's trial because he was trying to change his life. He maintained that he was "just telling the truth."
Defense witness, Christopher Focht, an expert in the diagnosis of hearing disorders, testified that he had tested defendant's hearing on January 8, 2010, and determined that defendant has organic hearing loss. Focht declared that defendant could hear and understand about 75 percent of what was said to him even when the surroundings were quiet. When there was noise, he could hear and understand about one-third of what was being said to him. He opined that defendant could probably understand more if he looked at the person who was talking.
The jury convicted defendant of both robbery and conspiracy to commit robbery. On March 30, 2011, the court sentenced defendant to the middle term of three years in state prison on the robbery conviction but suspended execution of sentence and placed defendant on probation.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
Defendant contends that the lower court's rulings that restricted his cross-examination of Glosser violated his Sixth and Fourteenth Amendment rights to confront witnesses and to present a defense. He also complains that the court's refusal to permit him to cross-examine Glass about his probation status violated his Sixth Amendment confrontation rights. He maintains that these evidentiary rulings require reversal as the record does not establish beyond a reasonable doubt that the verdict was not affected by these errors. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Under Evidence Code section 352, "The court in its discretion may exclude evidence if its probative value 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." "Trial judges retain 'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' [Citations.] A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 704-705.)
To the extent defendant is arguing that the court's restrictions on his cross-examination of Glosser deprived him of the right to present a defense, he must show that these rulings were prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). "Although completely excluding evidence of an accused's defense theoretically could rise [to the level of an unconstitutional deprivation of defendant's right to present a defense], excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) In the present case, " 'there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense[,]' " and therefore the proper standard of review is harmless error under Watson. (Fudge, at p. 1103.)
Defendant also contends that the trial court's rulings violated his right to confrontation. Where a criminal defendant's Sixth Amendment confrontation right has been violated, reversal is required unless the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) This standard of review requires "the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) In making this determination, we consider "a host of factors," including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case." (Delaware, at p. 684.)
II. Limiting the Cross-Examination of Glosser
A. Excluding Testimony Regarding the Facts Underlying a Prior Robbery
1. Background
The trial court admitted evidence that Glosser had committed an unprosecuted robbery in 2007 as well as evidence regarding other robberies that he had committed. However, it rejected defendant's request to cross-examine Glosser about the particular facts of the 2007 robbery. Defendant argues the court should have permitted him to ask Glosser about the facts related to this robbery that occurred in late 2007.
Prior to Glosser's testimony, defendant requested permission to impeach Glosser by cross-examining him about the unprosecuted 2007 robbery. Defendant's counsel argued that this incident was relevant to show Glosser's motivation. Counsel also asserted that the facts indicated that Glosser took advantage of defendant and treated him not like a partner, but like a "patsy." Defense counsel stated that in late 2007, Glosser and defendant drove to the courthouse in defendant's car. Glosser went to move the car and a stranger approached him asking for a ride to get some money. Glosser gave the stranger a ride, robbed him of his money, and returned the car to defendant several hours later. Counsel asserted that Glosser admitted in the preliminary hearing in this case that he had told the district attorney that defendant had been present during that robbery even though defendant was not actually there.
When declining to permit defendant to cross-examine Glosser about this unprosecuted 2007 robbery, the trial court explained that the facts of this other crime were "too confusing to the jury and not relevant to this proceeding." The court elaborated: "So [Glosser] can be impeached as to the robberies, but the underlying facts, in order to label the defendant a 'patsy' in some way, I don't find that relevant. And I actually find that to be extremely extrinsic and extremely confusing to the jury in this underlying case. So I will not allow the facts of the underlying [section] 211s to come in. I will allow the fact that he has committed multiple [section] 211s." The court ruled that Glosser could be impeached with the 2007 robbery and the statements by witnesses that Glosser picked vulnerable victims but excluded the underlying facts of the 2007 robbery as irrelevant.
2. No Error and Any Alleged Error Was Harmless
After weighing the probative value of the facts related to the 2007 robbery under Evidence Code section 352, the trial court determined that the facts were not relevant and would result in a confusing mini trial regarding the prior robbery. Defendant argues that this ruling constituted prejudicial error because this evidence was crucial to his defense that Glosser was not honest and lied when he testified that defendant agreed to close and guard the front door and help him commit the robbery. He claims that his cross-examination of Glosser regarding the 2007 robbery would have demonstrated that Glosser had taken advantage of him in the past and lied about his presence during the robbery. He asserts that a defendant must be permitted to attack the credibility of a witness, especially in the present case where Glosser's testimony was pivotal. (See Davis v. Alaska (1974) 415 U.S. 308, 316 (Davis) [cross-examination is used to "discredit" the witness].)
We conclude that the court did not abuse its discretion when it ruled that defendant could not question Glosser about the facts of the 2007 robbery. The exclusion of impeachment evidence "which has only slight probative value on the issue of veracity does not infringe on the defendant's right of confrontation." (People v. Greenberger (1997) 58 Cal.App.4th 298, 350.) We agree with the trial court that admitting evidence of this crime would have resulted in a mini trial about what actually happened in 2007, especially since Glosser was never prosecuted for the crime and therefore the underlying facts are presumably in dispute. Introducing the facts of this crime would have resulted in numerous questions, including those related to what Glosser actually told defendant he was going to do with the car, what defendant actually knew or reasonably should have known about what Glosser was going to do with his car, and what other crimes Glosser committed that involved defendant as either a partner or a "patsy."
Furthermore, even if we were to presume the court abused its discretion in refusing to permit questioning about the facts regarding this 2007 robbery, any error was harmless whether assessed in terms of Watson, "which asks whether it is reasonably probable appellant would have achieved a more favorable result if the court had not given the instruction" (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7), or the harmless beyond-a-reasonable-doubt standard for federal constitutional error under Chapman, supra, 386 U.S. at page 24. The evidence that Glosser used defendant's car to commit a robbery and then lied that defendant had been present during the robbery would not necessarily have been favorable for defendant. Such evidence would have raised the question of why defendant remained friends with Glosser when he knew that Glosser robbed people and took advantage of him.
The purpose for delving into the facts related to the 2007 robbery were, according to defense counsel, to show that Glosser was not credible and that he took advantage of defendant. However, the jury heard other evidence attacking Glosser's credibility, as the court permitted evidence of Glosser's prior convictions and of his participation in robberies that did not result in charges against him. The jury also heard his testimony that he was using drugs and alcohol at the time of the robbery. There was also evidence of Glosser's taking advantage of defendant, as Glosser testified that he paid defendant only $20 for his participation in the robbery even though he removed $150 from the liquor store.
Additionally, Glosser's testimony was not the only evidence supporting defendant's guilt. Granados and Sanchez testified that defendant was standing right outside the closed front door while Glosser was inside, dressed in dark clothing, committing the robbery. Despite being told about the robbery and to call the police, defendant walked away rather than use his cell phone to call the police. Glass testified that defendant told him that he had participated in the robbery, that he stood outside the liquor store while Glosser was inside, and that he received $20 from Glosser for his participation in the robbery.
In light of the testimony of Granados, Sanchez, and Glass, which supported defendant's conviction for participating in the robbery, and the ample evidence of Glosser's lack of credibility, any error in excluding facts that showed Glosser's lying about defendant's presence at another robbery was nonprejudicial under either Chapman or Watson. B. Excluding Testimony of Glosser's Request for Protective Custody and the Attack of Glosser While Incarcerated
1. Background
Glosser pled no contest to the robbery of the liquor store and was sentenced to prison. He was sent to the State of Oklahoma by the California Department of Corrections (CDC) as part of California's contract with other states to house California prisoners. Glosser was transferred to the Sonoma County jail and was housed there while testifying in defendant's trial.
Glosser testified at the preliminary hearing that he was not promised anything in exchange for his testimony in this case. He stated that he was "beaten very badly in Oklahoma" because he gave information to the police in this case. When asked why he was beaten, Glosser answered: "Because when I first entered CDC, I asked for protective custody and they denied me. And I was in the hole for one day. And there was a gentleman that went to Oklahoma to see me in the hole, now that I was in protective custody for one day. And he proceeded to have me jumped." He was asked why, and he replied: "Because in the police report it said I gave a statement. And so if someone was to check my paperwork, they would see that I gave a statement. And, yeah, I could be jumped for that." Glosser also admitted that he had given information to police on other cases.
Defendant asked the trial court to permit his counsel to cross-examine Glosser about his being beaten and his request for protective custody, which had been denied, as being a motive to testify in defendant's trial. The prosecutor emphasized that Glosser was not told he would receive protective custody in exchange for his testimony. The prosecutor admitted that she requested that he stay in county jail "for purposes of being able to get him here" to testify. The prosecutor stated that she brought Glosser from Oklahoma to testify, but she did so without knowing whether Glosser would cooperate.
The court ruled that defendant could question Glosser about any information he may have given to law enforcement in the past and his cooperation with law enforcement. However, the court discounted the relevance of Glosser's attack while in custody, explaining: "From what I'm hearing [Glosser] received no benefit from the People. The fact that he's in protective custody we all know that there are a number of inmates that find it being horrible being in protective custody and wish to be out. So how do we know this is a benefit for him? Has he admitted any of this information?"
Defense counsel argued that Glosser received a benefit from testifying because he had been beaten up in prison and had not been beaten up while in protective custody in the county jail. Furthermore, his family lived in Sonoma County. Counsel acknowledged that Glosser never specifically stated that he considered protective custody in county jail to be a benefit. The prosecutor acknowledged that Glosser did request to stay in local custody and, even though there had been no statement on Glosser's part that he wanted to remain in Sonoma County, the prosecutor agreed that he was probably "happy to be here locally."
The court concluded that the fact that Glosser had been assaulted in prison was not relevant.
During the trial, defense counsel again argued that Glosser wanted protective custody, which gave him a "motivation to lie in this case[,]" and that counsel should be permitted to cross-examine him on this issue. Although defense counsel acknowledged that Glosser never asserted that he was testifying in this case in order to get placed in protective custody, counsel emphasized that Glosser admitted that he was happy to be in protective custody.
The court repeated that Glosser's motivation to be in protective custody was not a motive to lie and the prosecutor made no promise or threat to him. The court precluded defendant from questioning Glosser about the benefits of protective custody in county jail.
2. No Error and Any Alleged Error Was Harmless
Defendant contends that he should have been permitted to question Glosser at trial about his being attacked in prison and his desire for protective custody. Defendant claims that Glosser's desire for protective custody may have prompted him to testify in a manner that benefited the prosecution with the hope that the prosecution would then persuade the prison to grant him the previously denied protective custody request. He insists that this cross-examination might have had some bearing on Glosser's credibility.
Defendant's argument has little merit. The prosecution reported that there had been no agreement to provide Glosser with protective custody in exchange for his testimony. There was no evidence that Glosser believed that his testimony would give him a better chance at receiving protective custody when returned to state prison.
Furthermore, for the same reasons already discussed with regard to excluding evidence of the facts underlying the 2007 robbery, defendant cannot demonstrate any prejudicial error, whether assessed under Watson, supra, 46 Cal.2d at page 836 or Chapman, supra, 386 U.S. at page 24. Defendant's conviction was not predicated solely upon Glosser's testimony and the jury heard other evidence bearing on Glosser's credibility.
III. Excluding Evidence of Glass's Probationary Status
Defendant contends that the trial court erroneously excluded evidence that witness Glass was on probation at the time of his testimony.
At trial, defense counsel argued that Glass's probationary status was relevant to bias because his status provided him a motivation to testify in a manner consistent with the prosecutor's objectives. The prosecutor responded that Glass had not been given any promises in exchange for his agreement to testify. The court asked whether Glass had ever stated that he was cooperating because he was on probation, and neither the prosecutor nor defense counsel indicated that he had made any such statement. The court ruled that it was not going to allow Glass to be impeached with regard to his probationary status.
The trial court's discretion to restrict cross-examination extends to exclusion of impeachment evidence regarding a witness's probationary status. (People v. Chatman (2006) 38 Cal.4th 344, 374; People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.) Unless the defendant shows that admission of evidence regarding probationary status would have caused a " 'significantly different impression of [the witness'] credibility,' " there is no confrontation clause violation. (Chatman, at p. 374.)
Defendant argues that the trial court's denial of his request to impeach Glass based on his probationary status constituted prejudicial error because this evidence had a direct bearing on Glass's credibility. Defendant stresses that Glass's testimony was particularly important because the jury could not convict defendant based solely on Glosser's testimony, since Glosser was an accomplice. (See § 1111.) Glass testified that he was now clean and sober and employed, which, according to defendant, made him seem more credible. Defendant argues that he could have countered this testimony with evidence of his probationary status. Defendant argues that the importance of Glass's testimony was underscored by the fact that the jury asked to have a copy of his testimony.
Defendant argues that the trial court's ruling in the present case is contrary to the holding in Davis, supra, 415 U.S. 308. In Davis the Supreme Court considered "whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness'[s] probationary status as a juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency." (Id. at p. 309.)
In Davis, supra, 415 U.S. 308, the defendant was charged with the theft of a safe that was found near the home of Richard Green, a crucial prosecution witness. Green identified the defendant as the person he saw close to the location where the safe was found. (Id. at pp. 309-310.) The defense sought to show a motive on the part of Green, who was on probation, to shift suspicion away from him and to implicate the defendant or to avoid a violation of probation for failure to cooperate with the police investigation. The trial court did not weigh the evidence and refused to permit the defense to cross-examine Green about his juvenile record for burglary. (Id. at pp. 310-311.) At trial, Green denied having any concern that the police found the safe on his property or that the police might think he was connected to the burglary. (Id. at pp. 311-312.) He also denied ever being interrogated by the police prior to this incident. (Id. at p. 314.) The Supreme Court noted that this latter answer was particularly suspect since it was probable that Green had undergone some questioning by the police when he was arrested for the burglaries on which his juvenile adjudication of delinquency rested. (Ibid.) The court concluded that "[t]he witness was in effect asserting, under protection of the trial court's ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold 'No' answer would have been given by Green absent a belief that he was shielded from traditional cross-examination." (Ibid.)
Thus, the court held that the refusal to allow cross-examination about Green's probationary status denied the defendant his constitutional right to confront witnesses against him. (Davis, supra, 415 U.S. at p. 318.) The court concluded that "the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record—if the prosecution insisted on using him to make its case—is outweighed by [the defendant's] right to probe into the influence of possible bias in the testimony of a crucial identification witness." (Id. at p. 319.)
The present case is clearly distinguishable from Davis, supra, 415 U.S. 308, in where the jury did not have any reason to question the witness's claim that he was not worried about being a suspect because they did not know about his prior burglary conviction. Here, and unlike the situation in Davis, the defense was not barred from probing a probably untruthful statement. Defendant has not demonstrated that Glass made any probably untruthful statement that could have been discredited if permitted to question him about his probationary status. Unlike the situation in Davis, where the jury was unaware of the witness's prior criminal conduct, defendant in the present case could cross-examine Glass about his criminal convictions, which had bearing on his credibility. Glass admitted that he was convicted of felony burglary in February 2004, of misdemeanor possession of stolen property in May 2010, of a felony for petty theft with a prior in April 2010, and of a felony for a commercial burglary in January 2010. He also testified that in August 2009 he had a "[m]ajor issue" with methamphetamine and therefore the jury was aware that he had a drug problem at the time he provided Officer Johns with the information about the robbery at the liquor store.
In sum, defendant has failed to establish that he was cut off from an entire line of questioning as a result of being prevented from revealing Glass's probationary status and the jury heard other impeachment evidence as to his credibility. Accordingly, defendant cannot show that the jury's knowledge of Glass's probationary status would have resulted in a significantly different impression of his credibility. (See Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Carpenter, supra, 21 Cal.4th at p. 1051.)
IV. No Cumulative Error
Defendant contends that the cumulative effect of the errors in his trial denied him a fair trial and violated his rights to due process. (Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490.) As we have rejected each of defendant's arguments of error we therefore necessarily reject his claim of cumulative error. (People v. McWhorter (2009) 47 Cal.4th 318, 377.) Furthermore, even if we presume that the court's rulings were error and the excluded evidence had some bearing on the witnesses' credibility, the cumulative effect of these minor errors was harmless. As already noted, the jury heard other evidence bearing on the witnesses' credibility and the evidence excluded was marginally relevant. We therefore reject defendant's claim of cumulative effect.
DISPOSITION
The judgment is affirmed.
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Richman, J.
We concur:
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Kline, P.J.
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Lambden, J.