Opinion
H035759
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DYLAN TRAVIS BAYLY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F17178)
1. INTRODUCTION
Outside a Santa Cruz bar in the early hours of Saturday morning, September 27, 2008, a highly intoxicated Justin Zuk verbally harassed a former roommate, defendant Dylan Travis Bayly, and defendant's friend, Benedict (Ben) Hayward. Defendant and Hayward walked away and climbed into the back seat of a car. Zuk snuck up on the car and punched defendant in the head through an open window. Both defendant and Hayward jumped out of the car and chased Zuk around a corner. Defendant reached him first and inflicted two mortal wounds with one of two knives he was carrying. Two Santa Cruz police officers observed some of the events and gave chase. Defendant and Hayward evaded the police on foot that night. Defendant turned himself in to the police two days later.
Defendant was charged with murder (Pen. Code, § 187). At trial, which commenced April 8, 2010, the prosecutor asked the jury to return a verdict of first degree murder. The jury was instructed that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter" either "if the defendant killed someone because of a sudden quarrel or in the heat of passion" or "if the defendant killed a person because he acted in imperfect self-defense." Defense counsel asked for an acquittal based on self-defense.
After 13 days of testimony and two days of deliberations, the jury convicted defendant of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and found true that he had personally used a knife as a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The court sentenced defendant to 12 years in prison, the upper term of 11 years for the manslaughter plus a one-year enhancement for personal use of a knife.
On appeal, defendant claims that he was prejudiced by the trial court's erroneous exclusion of three types of evidence. He should have been allowed to impeach prosecution witness Doug LeFebre with a prior misdemeanor conviction of lying to the police. He should have been allowed to present evidence, to establish Zuk's violent character, that: Zuk bragged about being stabbed in 2000 by Norteño gang members; he resisted arrest in 2002; he spat in a young woman's face in a bar; and, he threatened to shoot someone and burn his house down in 2007. Finally, the court should have admitted evidence, to corroborate defendant's fear of Zuk, that, after defendant killed Zuk, defendant requested protective custody and was threatened twice by third parties associated with Zuk.
For the reasons stated below, we will affirm the judgment, finding no error in the challenged evidentiary rulings, and concluding that defendant would not have obtained a more favorable verdict had any of this evidence been admitted.
2. TRIAL EVIDENCE
There was no dispute at trial that defendant stabbed Justin Zuk as described in the introduction above. The issue for the jury was defendant's mental state at the time of the stabbing. As the prosecutor argued to the jury, "[W]hat is this case about?" "It's about what was really going on in the defendant's head, what was really going on at that moment when he used deadly force."
At trial there was evidence of the entire relationship between defendant and Zuk, from their initial encounter in 2004 to their final encounter in 2008, including detailed testimony about a physical altercation they had in 2005 when they were roommates. Defendant was on the witness stand for four days and 22 friends and acquaintances of the protagonists provided their testimony.
A. Defendant and Zuk were briefly Roommates in Early 2005.
Defendant was a lifelong resident of the Santa Cruz area. He made money moving furniture, delivering pizza, and washing cars. His pastimes included drawing, etching, glass-blowing, skateboarding, attending concerts, and dancing.
Defendant was 24 years old when he met Justin Zuk at a concert in late 2004. Around that time, defendant moved into a house in Santa Cruz that his mother had just vacated. He needed roommates to help pay the rent. Zuk gave him $700 on the spot to rent a room. Defendant rented another room to Doug LeFebre, a high school acquaintance.
When Zuk moved in shortly thereafter, he set up a medical marijuana garden in one room. All three roommates sometimes smoked marijuana together. Defendant testified that he had his own. According to defendant, he vocally disapproved of Zuk showing his garden to a high school girl and, when he confronted Zuk about the garden exceeding the legal limits, Zuk responded that he had paperwork showing it was legal.
Zuk once told defendant that when he first came to Santa Cruz he grew marijuana in a ravine and guarded it with a machete. Zuk said that "if you hit someone with a machete you had better be prepared to bury them."
On one occasion Zuk had a rifle with a banana clip in their house while William Doerken delivered marijuana plants to Zuk. Zuk indicated that the gun and the marijuana were from another grow and he was adamant about not leaving the gun with a woman who, apparently, assisted in the grow, because she was a "sellout [who] could get shot in the face." Defendant had never seen Zuk so agitated. Defendant left the premises after telling him to remove the gun. When defendant repeated his request a day or two later, Zuk complied.
On another occasion, defendant came home to find 40 wrapped pounds of marijuana on their floor. Zuk was there with what looked to defendant like an armed security team of five people, including Zuk's friend Juan Sanchez. They stayed for the next two or three days and left with 25 pounds of marijuana that they were unable to sell.
Defendant told his friend, Dustin Wright, that he was concerned about Zuk "getting into drug dealings with some fellows who were I think a little bit more into the gangster side of stuff." Defendant was worried about Zuk bringing them around and what might be the repercussions if he asked Zuk to move out.
B. The First Physical Altercation between Zuk and Defendant
According to defendant, he was increasingly concerned about Zuk's activities. On February 8, 2005, the three roommates smoked marijuana together and went out to a restaurant where defendant bought them margaritas. Defendant told Zuk that he wanted him to move out once he harvested his marijuana crop. Zuk did not react at the time. They stayed and drank more at the restaurant before parting company.
According to defendant, he got home first that night. Juan Sanchez arrived next with a friend, who was large and had gang tattoos that were "[h]and picked tattoos . . . like . . . a prison tattoo." Defendant thought they were armed. LeFebre arrived and finally Zuk, who was drunk and belligerent. According to defendant, the others argued because Zuk was unable to come up with a $30,000 payment. Defendant thought it was a drug deal. Zuk threw and broke some mason jars containing marijuana and proclaimed himself " 'a bad ass fucking white boy.' " Defendant told Sanchez they had to leave.
Zuk tackled defendant to the ground. Defendant, who was six feet five inches tall and 180 pounds, put Zuk, who was about the same weight and six feet tall, in a headlock. Sanchez and LeFebre broke it up. Defendant called Zuk a "maggot" and the "worst type of person that this town attracts," and told him to move out the next day. When defendant turned his back, Zuk jumped over two couches and tackled him again. They rebounded off a sliding glass window and onto a table and onto to the floor. Defendant cut his hands on some of the broken glass that was on the floor.
Juan Sanchez, who claimed to be Zuk's best friend, testified that Zuk and defendant were completely drunk when he arrived at their residence that night. Sanchez did not recall LeFebre being there. After Zuk showed him his marijuana garden, Zuk and defendant started wrestling after a disagreement, the details of which Sanchez did not recall. Defendant fell through a glass table with Zuk on top of him. Sanchez offered to help defendant up, but defendant cursed him. Defendant cut his hand on a glass shard when he pushed himself up. He accused Zuk of stabbing him. Sanchez responded that he was drunk and Zuk had not stabbed him. Sanchez left when defendant called 911.
According to Doug LeFebre, there was already an altercation at his residence when he returned from the restaurant somewhat intoxicated. Zuk was drunk and he got a little crazy when he drank. Both Zuk and defendant seemed upset and were grappling. That struggle was broken up, but it resumed. During their second struggle, Zuk pushed defendant onto a table. The fall broke some jars made by defendant that were on the table, cutting defendant's hand. A glass window was broken. LeFebre and defendant went outside. LeFebre said that the neighbors were going to call the police, so he left.
On direct examination by the prosecutor, LeFebre said, "I wasn't completely intoxicated but I had a couple of drinks." On cross-examination, LeFebre said that he had nothing to drink because he has a commercial driver's license. "I mean[] I was intoxicated by smoking pot. I was high."
Around 2 a.m. on February 9, 2005, defendant called 911 and reported that his roommate had stabbed him, possibly with broken glass. He said he did not need an ambulance or medical assistance. He provided Zuk's first name and a description. He said they were drinking tequila and he did not know why he was stabbed.
Santa Cruz Police Officer Sergio Venegas responded to this call. Around 2:05 a.m., he saw defendant with a bleeding hand standing on the street. Defendant declined an ambulance. He initially said that Zuk had stabbed him with a piece of broken glass. He wanted Zuk arrested for stabbing him. He said he had no idea what the argument was about. After questioning, defendant explained that after Zuk had tackled him once, other people had pulled Zuk off him. Zuk had broken free and tackled him again. They landed on a glass table. It sounded to Officer Venegas that defendant had cut his hand getting up from the ground. Defendant said that Zuk had drunk a lot of tequila. Defendant himself had obviously been drinking. Venegas put defendant in the back of his patrol car and took him to where other officers had detained Zuk. Defendant identified Zuk as his assailant. Venegas talked defendant into getting treated at a hospital by saying he would drive him there and back.
According to defendant, the police coerced him into identifying Zuk before they would take him for treatment for his bleeding hand. Defendant was reluctant to be identified as a snitch. He was afraid of Zuk's associates.
C. Later Encounters and Conversations
According to LeFebre, the police came to the house and raided Zuk for growing too much marijuana. Defendant told LeFebre that the landlord had evicted them. LeFebre moved out immediately.
Matt Cooper, a high school friend of Zuk, helped Zuk move his belongings, which they found outside the house in a pile with a letter from defendant. In the letter defendant expressed his anger because he lost his opportunity to live in the house where his mother had lived and because he had done Zuk a favor by letting him live there.
After defendant and Zuk stopped being roommates, they had occasional encounters, mostly by chance, but a few intentional. LeFebre was cordial with defendant after that, but he sided with Zuk because he did not understand why defendant remained so upset.
Defendant believed that Zuk had taken some of his things, including his skateboard. About two weeks after the move, defendant went to Matt Cooper's apartment and walked in, seeing Zuk and Cooper there. He did not see his skateboard but he did see a crystal ball of his, so he retrieved it. He called Zuk a "maggot" before he walked out. According to defendant, he confronted Zuk on that occasion despite his fear of Zuk and his associates.
Shortly after this confrontation, Zuk came to where defendant worked delivering pizzas. Zuk was agitated. He called defendant a snitch and a "sellout" and said that defendant had caused him to be on felony probation. Zuk said that he and his friends knew where to find defendant. Defendant denied snitching on Zuk. After that, defendant quit that job and he moved from the west side of Santa Cruz to the east side. Defendant avoided Zuk when he saw him on the street and even moved out of Santa Cruz for a time.
According to Sanchez, about a month after the eviction, he and Zuk encountered defendant on the street. Defendant and Zuk were both drunk. Defendant made a fist. Defendant was upset about being evicted. Zuk said that if anyone should be mad, he should be, because he lost more. Sanchez told them that they needed to get over it.
In 2006 defendant developed an interest in harvesting mushrooms and he sold some to restaurants. Harvesting a mushroom usually requires the use of a knife. He started carrying a knife regularly when he planned to go into the woods. He denied thinking that a knife would help protect him against other people.
On one occasion defendant heard from a mutual friend that Zuk and his friends suspected defendant of stealing some marijuana and plants from Zuk. Defendant called Zuk on the phone and offered to meet him in a public place with his friends so defendant could look him in the eye and deny taking his marijuana. They talked it over. Defendant did not think that Zuk believed that defendant stole his marijuana, but he was concerned about Zuk's friends. "I was more concerned with them than I was with Justin." Zuk did not agree to meet with defendant.
On another occasion defendant encountered Zuk and LeFebre in the Red Room Bar in Santa Cruz. In Zuk's absence, defendant questioned LeFebre about why he was associating with Zuk. According to defendant, he left without finishing his drink when Zuk walked up. According to LeFebre, he was talking with defendant when Zuk walked up, and LeFebre said to Zuk in defendant's earshot that, "[y]ou guys should just go out and squash this." Zuk was not the kind of person to hold a grudge. Defendant did not react except to stare blankly and walk away. According to Sanchez, Zuk offered his hand to defendant to "squash everything" and defendant did not shake his hand.
According to LeFebre, every time LeFebre met defendant, defendant would "say something along the lines of [']I'm looking for that guy. I'm going to put him down.[']" LeFebre heard defendant say that half a dozen times. A "handful of times" defendant said that he was going to stab Zuk. Defendant denied making any of these statements to LeFebre.
According to Sanchez, when he and Zuk arrived at the Blue Lagoon Bar in Santa Cruz with two other people, possibly in 2007, defendant walked up to them and took an aggressive pose. Zuk and his group left. Defendant denied that such an encounter occurred.
At an art show in Capitola in 2007, defendant saw Zuk drinking, staring at him, talking on the phone, and apparently trying to sneak behind him. Defendant was concerned that Zuk was orchestrating an assault on him. This caused defendant to leave the show early.
Andrew Gruver met defendant at a Halloween party in 2007. They became friends, socialized regularly, and attended musical events together. Defendant only mentioned Zuk two or three times. Defendant said that they parted ways after having a conflict. Defendant did not consider Zuk trustworthy. Defendant said that he and Zuk were growing marijuana together and that they had fought about how to divide up the revenue from their grow.
According to defendant, once in 2008, he rode a bicycle near where Zuk was walking his two pet pit bulls on a short leash. Zuk let the animals lunge at defendant, causing defendant to swerve.
According to William Doerken, a friend of Zuk, defendant ordered coffee from Doerken at a Santa Cruz coffee shop in the afternoon of Spetember 26, 2008. They started talking about drinking. Defendant said that Zuk becomes a "psycho" when he drinks. Doerken agreed with him and said that Zuk needed to be more careful. Defendant said that if Zuk was not careful, " 'he is going to get stabbed by someone.' " After that, defendant left the coffee shop.
Defendant recalled the encounter differently. He talked to Doerken at the coffee shop about two to three weeks before September 26. They did talk about Zuk drinking. Defendant said something like "Zuk had a swath of destruction that was visible from space. If he didn't change his ways he was probably going to get shot."
D. Their Final Encounter the Night of September 26-27, 2008
On the night of Friday, September 26, defendant was trying to find a ride to a concert that weekend in the Sierras. He tried to talk Andrew Gruver into giving him a ride. He was carrying two pocket knives with him because he intended to forage for mushrooms in the Sierras.
Defendant accompanied Gruver to the Cypress Lounge in Santa Cruz where defendant had two drinks, danced, and smoked pot on the back porch of the lounge. Defendant's friend Ben Hayward was also at the lounge. Defendant asked Hayward to hold onto two knives, because they were banging in his pocket when he danced. Hayward declined. Around midnight Hayward asked defendant if he wanted to join him and Simone Farschi in having a drink at the Red Room. Defendant wanted to talk with Farschi, so he agreed. They each had a mixed whiskey drink as they socialized. Defendant also had a beer. Farschi agreed to go with defendant to the concert in the Sierras.
That night two friends, Bina Qassem and Karina Berdibekov, went to the Cypress Lounge and then to a private party before they stopped at the Red Room for one last drink for Berdibekov. Qassem was not drinking, as she was driving Berdibekov's car. Zuk was also at the Red Room by himself that night drinking four or five energy drinks with vodka.
Everyone left the Red Room after last call around 1:30 a.m. Outside the Red Room, Hayward spoke with Qassem and Berdibekov, with whom he was acquainted. They made plans to eat at the Saturn Cafe. Hayward was with defendant, whom Qassem did not recognize. Outside the Red Room Adam Burton, a friend of Zuk, also made plans to meet Qassem and Berdibekov at the cafe.
Zuk was the drunkest person outside the Red Room, according to Qassem and Burton. According to Burton, on a scale of one to ten, Zuk was a 12. Zuk was staggering and stumbling and mumbling incoherently. Zuk's blood alcohol level was later determined to be almost .22 percent and he had about halfway metabolized a potent marijuana cigarette.
Burton tried to introduce Zuk to Hayward, who is from England. Hayward did not understand what Zuk mumbled, but Burton reacted as though it was insulting to Hayward. According to Qassem and Berdibekov, Zuk was screaming about "dirty Brit[s]" and that British guys are "fags." It looked to Qassem and Berdibekov as though Zuk was trying to pick a fight, but Hayward did not respond.
Burton noticed that Zuk was staring at defendant, and he mumbled something about defendant being "anti Rasta", which Burton assumed was mocking defendant. Defendant seemed amused and told Zuk it was not cool to say that. According to defendant, Zuk said something incoherent that involved the word "sellout," to which defendant did not respond.
Burton talked to Zuk to walk him away from this encounter, telling him to go home. It seemed to Burton like Zuk was trying to pick a fight, though this was out of character for him.
Meanwhile Qassem, Berdibekov, Hayward, and defendant walked to Berdibekov's car in a nearby parking lot and got in, with Qassem in the driver's seat, Hayward behind her, Berdibekov in the front passenger's seat, and defendant behind her. The car was old and took a while to start up.
Zuk came to Berdibekov's car unobserved by the occupants. Through an open rear window he punched the right side of defendant's face, catching everyone by surprise. According to defendant, one punch hit him in the right ear, which was sensitive due to a prior injury. It was painful and disorienting and caused him to lean over. Though Qassem, Berdibekov, and Hayward each saw or heard the effects of only one punch, defendant claimed that another blow glanced off his right temple and he was thumbed in the eye on the upswing.
Defendant and Hayward both got out of the car. According to defendant, Zuk backed away, but his eyes were bulging and he was making taunting gestures. According to Hayward, Zuk was facing them, looking pleased with himself, and making antagonizing gestures, as though he wanted to fight.
Santa Cruz City Police Officer Damon Williams and Reserve Officer Scott Christie were on patrol that night with Christie driving. Around 1:57 a.m., Williams saw Zuk walk up to the rear of a vehicle. There appeared to be a brief struggle between Zuk and the right rear passenger, with both of Zuk's arms inside the car. According to Officer Williams, Zuk started running northbound and did not turn to face the occupants of the car. Hayward and defendant chased Zuk with defendant five to ten feet ahead of Hayward.
Qassem yelled out the car window that they should come back to the car, that Zuk was drunk and she would call the police. Qassem and Berdibekov saw defendant's hand reaching towards his right pants pocket.
According to Hayward, he stopped running about 30 feet away from where Zuk had stopped. He told Zuk to leave the area. It looked to Hayward like defendant overtook Zuk and ran into him and grabbed Zuk to stabilize himself. It looked like they were going to fight, so he ran up to them. At the same time Zuk fell almost at Hayward's feet. Hayward denied kicking or punching Zuk.
Hayward testified pursuant to an immunity agreement under which all charges against him were dropped.
According to defendant, he wanted to chase Zuk away, not to catch up to him. But he did catch up to him. He felt like Zuk was reaching for something, though he saw nothing in Zuk's hands. They both swung at each other and missed and their limbs tangled, spinning defendant a little.
Defendant, with his eye tearing, thought he saw a large man coming to Zuk's aid. He thought he had been lured into a trap by Zuk. He thought Zuk had pulled out a metallic object and was lunging for him. Zuk punched defendant's big metal belt buckle.
According to defendant, though he had not planned to stab or kill Zuk, he pulled out a knife from his right front pants pocket and opened it. He tried to hit Zuk low as hard as he could in order to incapacitate Zuk, but not kill him. Zuk was leaning over, so defendant stabbed him in the chest. After that Zuk dropped out of his vision. Defendant believed he inflicted the other wound on Zuk when defendant was trying to stab at the fourth person to keep him at bay.
The parties stipulated at trial that the police looked for surveillance videos from nearby stores and located a surveillance video from the Bad Ass Coffee Shop. While the video was being shown to the jury, defendant testified that this coffee shop was two blocks from the Red Room and that the videotape depicted a person, dressed like the fourth person, running away from the scene of the fight at 1:57 a.m. No other witness in the trial corroborated defendant's sighting of a fourth person nor supported his claim that the video depicted such a person.
Officer Williams testified that, as the patrol car closed the distance, he lost sight of the men for a couple of seconds as they went around a corner. Williams left the patrol car and chased them on foot. He next saw Zuk on his knees and the other two apparently punching at him, though he did not see the punches land. Williams saw no weapons and he saw no fourth person in the vicinity.
The patrol car's lights illuminated the scene. Hayward fled southbound because he did not want to get involved in a police investigation of a fight. Defendant fled southbound due to escalating panic. He heard Officer Williams say " 'I'm going to kick your ass.' " Williams said this because they were not responding to his commands to stop. They both ran away from him.
One of defendant's two knives apparently fell out of his pocket near the scene of the stabbing. Defendant had no recollection of losing it. He threw the other one, a bloody Smith and Wesson knife, onto the roof of a business as he fled.
Zuk also ran a short distance as Officer Christie chased him on foot. Zuk stopped near a tree. As Christie approached he saw blood all over the front of Zuk. Christie told him to sit or lie down. Zuk lay down. Blood was spurting from his neck. An off-duty EMT who had been driving by stopped and rendered aid. Zuk said, " 'Help me. Help me.' " " 'I'm going to die.' " And, immediately thereafter he did die, on the street where he lay. No weapon was found on Zuk's person.
Dr. Mason, a forensic pathologist for the Santa Cruz Sheriff's Coroner, testified that defendant inflicted two fatal wounds on Zuk. One that looked like a snap cut went through Zuk's right earlobe and plunged into the right side of his neck, traveling eight inches from three inches below the earlobe through the strap muscles at the side of the neck and external and internal jugular veins and the subclavian artery onto the upper portion of the sternum. There was also an oblique stab in the left side with a wound of about one and a quarter inches. The blade went through the diaphragm, the lower left lobe of the lung, the spleen and the tip of the kidney. This wound appeared as though the knife had plunged in all the way to its thumb stub, which would have required significant force. There were no defensive cuts on Zuk's hands or forearms. In the coroner's opinion, Zuk was probably upright when he received both wounds, and the slash preceded the stab, although he could not say for certain.
Defendant did not dispute that he inflicted both of the wounds described by Dr. Mason. Defendant's recollection was that he stabbed Zuk once in the chest. Defendant claimed that he inflicted the other wound on Zuk when defendant was trying to stab at the fourth person and admitted that, from prior experience gardening with a machete, he was familiar with making a snap cut.
E. After the Killing
Defendant first went to his aunt's house and washed the blood off his hands in her yard. He curled up in the yard as he felt conflicting emotions. Next he went to Andrew Gruver's house where a number of people were listening to music. When defendant used the bathroom, he saw blood on his shoes and washed it off. Defendant pulled Gruver into the kitchen and said that he had stabbed someone. Gruver did not want to hear more about it, so they stopped talking about it.
Defendant spent the rest of the night at Gruver's residence. Before he went to sleep, he showered and changed his clothes. He put the clothes he had been wearing in a white plastic bag. There was a little blood on them. The next morning defendant disposed of the bag of clothes in a dumpster behind a store.
Defendant did not see anything about a stabbing in the newspaper, but someone in the house got on the Internet and saw an article about someone being stabbed and killed in downtown Santa Cruz. This caused defendant to vomit and dry heave. Defendant was concerned about retaliation from Zuk's associates. He was concerned about involving his friends in his plight.
Defendant visited another friend for a while. Defendant returned to Gruver's house on Saturday evening. They drove to San Francisco in order to attend a concert at a night club and also because defendant wanted to see his sister and get out of Santa Cruz. Defendant was unable to contact his sister. At the concert, defendant ran into a disc jockey friend who told him that Zuk's friends were at the club and defendant would be better off turning himself in. They returned to Santa Cruz that night.
Gruver testified that he told defendant that he could not stay at his house. Defendant did not recall Gruver saying that. He spent part of the night on a couch in the back yard, but left when he thought that some large and unfriendly men had come to the house looking for him.
Defendant visited Ryan LaPorte, a friend, on Sunday morning, September 28. They talked about his situation and did some Internet research on self-defense. They agreed he should turn himself in. Defendant visited Dustin Wright. According to Wright, defendant told him that they had gotten into a fight after Zuk had punched him in the head in a car. They were grappling. He thought Zuk had pulled a knife. Zuk was seriously cut.
On Sunday evening, defendant called Gruver and they arranged to meet. Gruver told defendant that he should turn himself in. Gruver and his friends were worried that they would be in trouble. By the time defendant returned to LaPorte's, he learned that Hayward had been arrested.
Defendant went to the Santa Cruz police station to turn himself in late Sunday night, but no one was there. Defendant went to a bar to have a beer. Then he went to the Red Room. He talked to employees at the Red Room, apologizing for what had happened outside the bar. He was crying. He said he had stabbed someone in self-defense. The other guy threw a punch and he was trying to defend himself. He did not say the other guy was armed. Defendant admitted that he did not mention to anyone on Saturday or Sunday that a fourth person was involved.
3. JURY INSTRUCTIONS
The jury was instructed about self-defense and imperfect self-defense. The instructions explained that killing in self-defense is justified only if the defendant reasonably believed that it was necessary to immediately use deadly force to avoid suffering imminent death or great bodily injury and the defendant used no more force than necessary. A defendant's belief may be reasonable though mistaken. When deciding whether the defendant's beliefs are reasonable a jury must consider what a reasonable person would have believed having in mind the circumstances known and apparent to the defendant. (CALCRIM No. 505.)
"If you find that Justin Zuk threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] If you find that the defendant knew that Justin Zuk had threatened or harmed others in the past you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." (CALCRIM No. 505.)
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measure against that person." (CALCRIM No. 505.)
Though safety may be achieved by retreating, a defendant is not required to retreat, but may stand his ground and, "if reasonably necessary," "pursue an assailant until the danger of death or great bodily injury has passed." (CALCRIM No. 505.)
"The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable." (See CALCRIM No. 571.) Imperfect self-defense involves a defendant actually, but unreasonably, believing that the immediate use of deadly force is necessary to defend against suffering imminent death or great bodily injury. (CALCRIM No. 571.) "If you find that Justin Zuk threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant's beliefs." (See CALCRIM No. 571.)
4. EXCLUSION OF D OUG LeF EBRE ' S PRIOR CONVICTION
On appeal defendant argues both that the trial court erred in excluding a misdemeanor conviction of Doug LeFebre for lying to the police and that it was ineffective of defense counsel to not make a winning argument for its admission.
A. The Ruling on Defendant's Request
On the seventh day of testimony, before Doug LeFebre testified, defendant asked to impeach him with a prior misdemeanor conviction. In the jury's absence, defense counsel presented an exhibit that showed that, after LeFebre was cited for violating Penal Code section 148, subdivision (a) (resisting or obstructing a peace officer) and Vehicle Code section 2800, subdivision (a) (failing to obey a peace officer), he was convicted on June 7, 2007, of violating Penal Code section 148.9 (giving false identification to a peace officer). Defense counsel acknowledged, "Under [Evidence Code section] 352 the Court may exclude it under those grounds, however, we're not going to belabor the issue."
Penal Code section 148.9 states: "(a) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.
"(b) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any other peace officer defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, upon lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the arresting officer is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer."
Evidence Code section 352 states: "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."
The prosecutor conceded that a violation of Penal Code section 148.9 would be a crime of moral turpitude. The prosecutor pointed out, "the fact that the conviction itself [sic] is inadmissible. That's only felony convictions that are admissible." The court stated, "I'm aware of that. That's why the Court has some discretion in letting in a misdemeanor . . . ."
The court was concerned that the conviction may have arisen from a plea bargain that did not reflect what LeFebre actually did. The court stated, "The question is do we wish to spend the additional time and energy developing the factual situation in a case such as this and the Court under 352 is going to exercise its discretion and say no and I'm going to limit any evidence as it relates to this 148.9."
Defense counsel offered to ask LeFebre one question about whether or not he suffered this conviction. The court responded that the prosecution would be entitled to explore the underlying details. "I think that it would take more time to sort out the underlying facts of whether or not it is a crime that actually existed or was merely a plea-bargain and I think it's under 352 that the Court will exercise that at this time."
B. The Correctness of the Ruling
It is established that a witness can be impeached with evidence of misdemeanor conduct involving moral turpitude. As this court explained in People v. Lopez (2005) 129 Cal.App.4th 1508, 1522: "Prior to the enactment of Proposition 8 in 1982, the Evidence Code precluded impeaching a person with specific acts of prior criminal conduct other than a felony conviction. (See Evid. Code, §§ 787-788.) The enactment of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) invalidated this rule. People v. Wheeler (1992) 4 Cal.4th 284 [(Wheeler)]has determined that a person can be impeached in a criminal case by evidence of prior misdemeanor conduct that involves moral turpitude. (Id. at pp. 295-297.) 'Misconduct involving moral turpitude may suggest a willingness to lie.' (Id. at p. 295.) However, evidence of a misdemeanor conviction remains 'inadmissible hearsay when offered to impeach a witness's credibility.' (Id. at p. 300, fn. omitted.)" (Fns. omitted.)"
Wheeler, supra, 4 Cal.4th 284 also observed: "When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, 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." (Id. at pp. 296-297, fn. omitted.)
Wheeler was decided in 1992. In 1996 Evidence Code section 452.5 was enacted, which provides in part: "(b) An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record." This enactment is understood as creating "a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense." (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. omitted.) Unlike section Evidence Code section 788, subdivision (a) pertaining to felony convictions, Evidence Code section 452.5 does not specifically authorize use of a misdemeanor conviction as impeachment. It simply authorizes proof of the underlying conduct by the official record of conviction.
Defendant recognizes that "the court excluded the conviction, on the ground that establishing the facts underlying it would be too time-consuming" under Evidence Code section 352. But he also asserts that "[t]he trial court held it inadmissible under the Wheeler rationale." Defendant obliquely attacks the trial court's ruling. He does not argue in his opening brief that the trial court abused its discretion under section 352 in excluding this evidence. Instead, we understand defendant to argue in the alternative either that the trial court should have admitted the court records under Evidence Code section 452.5 or that defense counsel was ineffective for failing to make this argument.
We reject defendant's suggestion that his offer of proof was adequate to apprise the trial court that he was seeking to admit the court records into evidence. Counsel offered to impeach LeFebre by asking if he had suffered this conviction, not by producing documentary evidence.
"As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code section 354, subdivision (a), requires the proponent make known to the court the 'substance, purpose, and relevance of the excluded evidence . . . .' This requirement applies equally to establishing a hearsay exception." (People v. Ramos (1997) 15 Cal.4th 1133, 1178.) Having failed to ask for admission of the court records under Evidence Code section 452.5, defendant cannot fault the trial court for failing to grant it. (Ibid.) We agree with the Attorney General that this contention was forfeited.
Perhaps because defense counsel did not offer the court records in evidence as an exhibit, they were apparently not made part of the record on appeal. (Cal. Rules of Court, 8.320(e).) Appellate counsel has attached the purported documents to his opening brief, perceiving an inability to augment the record on appeal with a document not filed or lodged with the court. The Attorney General accepts these copies as accurate.
C. Ineffectiveness of Trial Counsel
Defendant observes that "[a]pparently, neither the court nor the parties were aware of Evidence Code section 452.5."
" ' " '[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [(Strickland)]; [People v.] Ledesma [(1987)] 43 Cal.3d [171,] 215-216.) Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " [Citations.]' [Citation.] This second part of the Strickland test 'is not solely one of outcome determination. Instead, the question is "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.)' [Citation.]" (In re Hardy (2007) 41 Cal.4th 977, 1018.)
Defendant asserts that he was prejudiced by the exclusion of this impeachment because "[n]o witness offered more damning evidence against Bayly than LeFebre. He testified that on close to six different occasions Bayly unequivocally stated that he was go[i]ng to kill Zuk."
The Attorney General asserts that, even if defense counsel had cited Evidence Code section 452.5, the trial court would have been justified in excluding the evidence under Evidence Code section 352. Defendant replies that it would have taken no time at all to simply admit the court records and that the court abused its discretion under Evidence Code section 352 because it did not recognize that the records were admissible as impeachment. We regard the first point as a variation on defendant's offer at trial to simply ask if LeFebre had suffered this conviction.
Admitting the documents attached to defendant's opening brief would have established that LeFebre was eventually convicted under Penal Code section 148.9 after initially being cited for interfering with the performance of a peace officer's duties (Pen. Code, § 148, subd. (a)) and refusing to obey an officer's lawful order (Veh. Code, § 2800, subd. (a)). On its face this paperwork raises a question about what his underlying conduct was. The trial court justifiably recognized that admitting the conviction would have prompted the prosecutor to explore whether LeFebre had actually lied to an officer or whether the conviction was just a negotiated resolution of the charges. Balanced against this consumption of time, it is hard to imagine evidence much more probative of a willingness to lie than a conviction for lying to a police officer, and Attorney General does not argue otherwise.
We are not persuaded that the trial court would have abused its discretion under Evidence Code section 352 in excluding this impeachment if defense counsel had cited Evidence Code section 452.5. We are more confident in concluding that there is no reasonable probability that a determination more favorable to defendant would have resulted from LeFebre being impeached with this misdemeanor conduct.
We confess some amazement that defendant is criticizing his trial attorney for ineffectiveness. Defendant was facing charges of first degree murder for fatally stabbing an unarmed and highly intoxicated man after the man punched him without provocation. The jury convicted defendant of voluntary manslaughter, implicitly finding that he either acted in imperfect self-defense or in a heat of passion. LeFebre's testimony would have supported a verdict of premeditated murder. As the Attorney General points out, it is apparent that the jury completely discounted the testimony of LeFebre that defendant had frequently proclaimed his intent to stab Zuk to death.
Defendant recognizes that "the jury rejected premeditation," but asserts that the jury also rejected defendant's self-defense theory "in large part because of LeFebre's testimony." Defendant attaches entirely too much significance to LeFebre's testimony. LeFebre did not witness the final encounter between defendant and Zuk. The eyewitnesses to the stabbing and its immediate aftermath, including Ben Hayward and Officer Damon Williams, failed to corroborate defendant's testimony either that Zuk was armed or that a fourth person was menacing defendant when he fatally stabbed Zuk. Defendant admitted that he did not tell anyone about a fourth person before he turned himself in. Under the objective circumstances, the jury could not have found that defendant reasonably believed that it was necessary to immediately use deadly force to avoid suffering imminent death or great bodily injury from an unarmed and highly intoxicated man.
In our review of the trial evidence above, we highlighted defendant's testimony in order to understand the jury's verdict. In order to find that defendant actually, but unreasonably, believed he needed to use deadly force, the jury must have accepted either that, during their final encounter, defendant thought Zuk had a weapon or that he thought that Zuk had an ally present, and it must have rejected LeFebre's testimony about defendant's premeditation. We have no doubt that defendant has already obtained the best possible verdict. We conclude that defendant would not have improved on this result had trial counsel obtained admission of this impeachment of LeFebre by invoking Evidence Code section 452.5.
5. EXCLUSION OF EVIDENCE OF Z UK'S CHARACTER FOR VIOLENCE
On appeal defendant contends that the trial court erred in excluding four instances that revealed Justin Zuk's character for violence.
A. The Motions in Limine and for Reconsideration
At the outset of the trial, the prosecution filed a motion in limine to exclude evidence of four incidents purportedly revealing Justin Zuk's character for violence. The court initially granted this motion and reaffirmed its ruling despite repeated defense requests for reconsideration.
As eventually detailed in the requests for reconsideration, the first incident, chronologically, was in 2002. Zuk, who was intoxicated at the time, resisted arrest while being handcuffed by: swearing at the officer, stiffening his arms, and trying to pull away. He did not attempt to strike the officer. Defendant does not claim that he was aware of this incident.
The second incident was in early 2005 when Zuk first met Jonah Carrington. Zuk stated that he had connections with the Mexican Mafia as a result of him growing large quantities of marijuana in Northern California. Zuk claimed he had been stabbed on two occasions and shot once. One occasion was a fight in Visalia in 2000, where Zuk was stabbed 11 times by three to five Norteño gang members.
On April 29, 2010, defense cocounsel Sara Zalkin acknowledged that Carrington's statement did not reveal whether defendant was present during these statements, which occurred at the residence he shared with Zuk. Her position was that defendant was present. On May 4, 2010, defense cocounsel Tony Serra asserted that defendant was present when Zuk made these statements to Carrington. The prosecutor repeatedly asserted that there was no evidence that defendant was aware of them.
The third incident, based on what defendant told Carrington, was when defendant saw Zuk spit in a young woman's face at the Blue Lagoon Bar, after which he was beaten up by her boyfriend. At the time, Zuk was too intoxicated even to pull up his pants.
The trial court referred to this spitting incident as occurring in 2007 at its first hearing. However, neither the moving papers, the opposition, nor the oral argument provided a date in describing the incident.
In the fourth incident, on June 20, 2007, Zuk called one Michael Brown on the telephone to express his anger at a friend of Brown's getting a promotion at work that Zuk felt he deserved. Zuk called Brown a "little bitch" and told Brown that he was going to burn Brown's house down, that Zuk was going to get his friends and shoot Brown, and that Zuk was going to be at Brown's house that night. Brown responded by saying that he had friends who knew when to call the police. Brown filed a crime report. Defendant was apparently unaware of these threats to Brown.
Defendant orally argued at the original in limine hearing that what defendant knew about Zuk impacted "ultimately what he perceived that night. You know, it corroborates his state of mind that night." Even for Zuk to be stabbed corroborated defendant's impression that Zuk is a "gang banger, he's got gang banger friends and they're going to get me."
The trial court initially concluded that none of these incidents actually demonstrated physical violence by Zuk. The court stated, "Spitting is a violent act, but I don't see it in the same line as someone throwing a punch or using physical force in some regard." "I think it's more of just poor behavior." As to the stabbing of Zuk and his resisting arrest, they were also excluded under Evidence Code section 352.
On April 29, 2010, when the prosecution rested its case-in-chief, the prosecutor asked the court to reaffirm its rulings on the in limine motions before defendant testified. There was some disagreement about what the defense meant in replying to the prosecutor's original motion in limine that "[t]he defense does not intend to adduce any affirmative evidence of the decedent's ties vel non with organized crime." Defense counsel explained that they did not intend to produce evidence of criminal association apart from defendant's state of mind and belief in Zuk's ties. The court stated that this distinction was not clear at the initial hearing. "This is all about the victim's character for violence which goes . . . ." Defense counsel replied, "In my perspective it's all about my client's state of mind in the engendering fear by the decedent's association with these gangs." The court indicated that defendant could describe his state of mind regarding what he personally knew. As to Zuk's boasts to Carrington about getting stabbed, the court indicated that it should be tied into defendant hearing about them.
On April 29, 2010, the court reaffirmed its rulings regarding defendant spitting on and threatening others. "I just don't see how they have any basis to demonstrate that someone was in fear, in this case the defendant was in fear of the decedent because he allegedly spit in the face of some girl, stiffened up when he was being arrested or was the victim of a fight in Visalia back in 2000." "It just seems too remote, too unconnected and unless you can give me an offer of proof I don't see how those areas are relevant and under 352 I would continue to keep those out."
On April 30, 2010, defense counsel asked for an opportunity to complete the record regarding Zuk threatening Michael Brown. Counsel asserted that it would "show the reasonableness of my client's state of mind in terms of" his fear of violence by Zuk.
On May 4, 2010, after the cross-examination of defendant, the court reiterated its exclusion of Zuk boasting to Carrington that he had dealings with the Mexican Mafia and he had been stabbed.
On May 5, 2010, the 12th day of testimony, the defense filed a written motion seeking reconsideration of the court's rulings regarding Zuk's violent character. The court heard further argument in the jury's absence, read the cases cited, and reaffirmed its ruling excluding the evidence.
B. The Correctness of the Rulings
Evidence Code section 1103 provides in part: "(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] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
Prior to the enactment of Evidence Code section 1103, case law had recognized "the well established fact in human experience that the known reputation of an assailant as to violence, even if specific acts are not within the knowledge of a person assaulted, has a material bearing on the degree and nature of apprehension of danger on the part of the person assaulted, if such reputation is known to the victim of the assault (and further, even if the reputation is unknown) to show that one who is turbulent and violent may more readily provoke or assume the aggressive in an encounter." (People v. Smith (1967) 249 Cal.App.2d 395, 404, and cases there cited.) Evidence Code section 1103 allows introduction of specific acts of the victim. (People v. Smith, supra, 249 Cal.App.2d at p. 405.)
A victim's violent or aggressive character may be relevant in two ways. First, it may prove that the victim acted in conformity with that character in a confrontation with the defendant, whether or not the defendant was previously aware of this character. (People v. Rowland (1968) 262 Cal.App.2d 790, 797; see People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) Second, regardless of how the victim acted during their confrontation, the defendant's awareness of a victim's violent tendencies is probative of the reasonableness of the defendant's fear of the victim. (People v. Davis (1965) 63 Cal.2d 648, 656-657.)
As indicated above, the jury was accordingly instructed: "If you find that Justin Zuk threatened or harmed the defendant or others in the past[,] you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] If you find that the defendant knew that Justin Zuk had threatened or harmed others in the past you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." (See CALCRIM No. 505.)
We find no abuse of discretion under Evidence Code section 352, which authorizes exclusion of evidence with some probative if that 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."
If Zuk indeed was the victim of one or more stabbings, this alone does not establish that he personally engaged in violence either while or before he was stabbed. Defendant did not offer to prove that Zuk himself engaged in violent conduct immediately preceding or following this stabbing. Nor do we regard it as assaultive conduct that, while intoxicated, Zuk attempted to avoid being handcuffed by the police by stiffening his arms and pulling them away. This conduct is completely different than the evidence properly admitted in People v. Wright (1985) 39 Cal.3d 576 that the victim had violently resisted arrest. (Id. at pp. 586-587.)
To the extent that Zuk being stabbed or stiffening his arms could be slightly probative of a violent character, we find no abuse of discretion in excluding either incident as more likely to yield confusion and consume trial time than warranted by any slight probative value. (People v. Wright, supra, 39 Cal.3d at pp. 587-587.)
"[Evidence Code] [s]ection 352 directs 'the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty.' " (People v. Wright, supra, 39 Cal.3d at p. 588, quoting People v. Lavergne (1971) 4 Cal.3d 735, 744.)
The same is true of the evidence that Zuk, while intoxicated, spat in a young woman's face. Though this act could technically qualify as the crime of battery (Pen. Code, § 242; People v. Hamilton (2009) 45 Cal.4th 863, 934) defendant did not testify that he was afraid of Zuk spitting on him. He testified that he was afraid that Zuk had pulled a weapon on him. The kind of fear probative of self-defense, perfect or imperfect, is fear of imminent great bodily injury or death. We agree with the trial court that the logical leap from spitting on someone to stabbing or shooting them is too distant. To the extent that this was remotely probative of a character for violence or would cause fear to defendant, we conclude that the trial court did not abuse its discretion in excluding this evidence as more time-consuming or confusing than probative.
On appeal, defendant recognizes that spitting does not cause physical harm. He argues it is relevant because it was likely to provoke the violent confrontation that actually resulted, when the young woman's boyfriend beat him up. There are two problems with this argument. First, defendant did not assert this theory of relevance in the trial court. (Evid. Code, § 354.) Second, had this argument been made, it would have illustrated, like the gang stabbing of Zuk, how he was the victim of violence, not the assailant.
Similarly, Zuk's telephone threats to Michael Brown are at best equivocal evidence of a violent character. Had Zuk acted on his threats to burn down Brown's house or shoot him, it would have been probative of character for violence; but, as he did not, the evidence would tend to prove that Zuk customarily made empty threats. Again, we conclude that, to the extent that this was remotely probative of a character for violence, the trial court did not abuse its discretion in excluding this evidence as more time-consuming or confusing than probative. (People v. Shoemaker, supra, 135 Cal.App.3d 442, 449-450.)
Defendant asserts that, "[b]ecause a defendant's right to a defense is constitutionally based, it is well settled that Evidence Code section 352 must yield to the defendant's right to present evidence tending to show his innocence—however weak." He relies on the statement in People v. Reeder (1978) 82 Cal.App.3d 543, "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense." (Id. at p. 553.) That opinion followed that statement with the qualification, "We do not mean to imply, however, that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352." (Ibid.)
In his reply brief, defendant concedes the standard does not require admission of evidence that is only slightly relevant.
We do not see that defendant made this constitutional objection in the trial court. Defendant has forfeited any argument "that the trial court should [have] engage[d] in some sort of due process analysis that was different from the Evidence Code section 352 analysis." (People v. Partida (2005) 37 Cal.4th 428, 435.) However, "defendant may make a very narrow due process argument on appeal." (Ibid) He may argue that the asserted error in excluding the evidence pursuant to Evidence Code section 352 "had the additional legal consequence of violating due process" by depriving him of a right to present evidence. (Ibid.) Our conclusion that there was no error under Evidence Code section 352 suffices to dispel the constitutional gloss on his argument. (People v. Riggs (2008) 44 Cal.4th 248, 292.) It is no violation of the right to present a defense to exclude "time-consuming hearsay and character evidence that was not particularly probative." (People v. Jones (1998) 17 Cal.4th 279, 305.)
Though defendant further asserts that these four incidents "were the only specific instances of conduct showing Zuk's violent character offered by third persons," the exclusion of these four incidents did not deprive defendant of the opportunity to portray Zuk as a violent character. There were a number of eyewitnesses who described in great detail Zuk's physical confrontation with defendant in 2005 and his punching defendant in 2008 shortly before the stabbing. Many witnesses, including a police officer, testified about Zuk sneaking up on defendant and punching him in the head in a car in 2008, leading to the stabbing. Defendant also testified that he heard Zuk had carried a machete and that Zuk once threatened him after he had seen Zuk with a rifle. Defendant's right to present a defense was not infringed by these rulings excluding evidence that was at most marginally probative of Zuk's character for violence.
6. EXCLUSION OF EVIDENCE OF DEFENDANT'S POST-STABBING EVENTS
On appeal defendant contends that the trial court erred in excluding three post-stabbing events that defendant offered to corroborate "his professed fear of Zuk and his associates."
A. The Motions in Limine and for Reconsideration
During the original motions in limine on April 8, 2010, the trial court asked what evidence there was of third parties threatening defendant. Defense counsel responded, "when he surrendered to law enforcement he asked for protective custody because he was fearful that so-called Mexican Mafia or so-called gangster types would retaliate while he was imprisoned and he was thereafter threatened in prison. The aftermath corroborates the validity and the merit of his state of mind prior to the event and leading up to the events." The prosecutor responded that "[t]hese alleged threats by unknown parties after the defendant went into custody are irrelevant to his state of mind on what happened before. He didn't know about them. They hadn't occurred yet." There was no connection between them and Zuk. The court ruled tentatively to exclude the evidence.
On April 29, 2010, when the prosecution rested its case-in-chief, the prosecutor asked the court to reaffirm its rulings on the in limine motions before defendant testified. The prosecutor asserted that threats after the homicide occurred should be inadmissible. Defense counsel asserted that there were two occasions. When defendant attended the night club concert in San Francisco on the evening after he stabbed Zuk, he was told that he better leave before some people would recognize him and kill him. Also, defendant requested protective custody due to fear of the Mexican Mafia, and in jail he got a "kite" saying that, since he killed someone who owed a large sum of money, he was responsible for it. It "corroborates the circumstantial evidence that corroborates his state of mind." As to the post-homicide evidence, the court asked for further briefing.
The following day, April 30, 2010, defense counsel acknowledged being unable to find precedent authorizing evidence of threats by third parties after a confrontation to corroborate the defendant's fear of the victim. The court excluded the post-homicide threats and fear as irrelevant and as more prejudicial than probative of defendant's mental state at the time of the homicide. At the same time, the court stated, "It's an issue that is ripe[,] I think[,] for discussion."
During the course of this argument, the court stated, "I'm not sure that the defendant[']s state of mind when he is in custody afterward is relevant. Does it corroborate? Yes. But is that the test and is the offer of proof . . . that people were going to get the defendant because he killed someone who owed them money[] collateral and misses the focus of what is usually looked at in the state of mind for purposes of self-defense[?]"
Notwithstanding this ruling, on May 4, 2010, during defendant's cross-examination, he testified that when he attended the concert in San Francisco the night after he stabbed Zuk, a disc jockey friend of his told him that some of Zuk's friends were at the club and defendant would be better off turning himself in. After the cross-examination concluded later that day, defense counsel asked the court to reconsider its exclusion of the three post-homicide events based on the prosecutor's cross-examination of defendant regarding his post-arrest state of mind. The court denied the motion.
B. The Correctness of the Rulings
On appeal defendant argues that the post-stabbing events were each probative of his state of mind at the time of the stabbing because they corroborated it. He contends that this corroboration was important, because, "[a]lthough [defendant] testified that he feared Zuk and his associates, there was little evidence that tended to corroborate that fear." Defendant acknowledges that he has not found authority in direct support.
On appeal, defendant argues that this evidence was also probative of what Zuk and his associates "were capable of" and why defendant "hesitated in turning himself in." As the evidence was not offered on this basis in the trial court, these arguments are unavailable to defendant on appeal. (Evid. Code, § 354, subd. (a).)
It is established that if someone associated with Zuk had threatened defendant before their confrontation, that threat would have been admissible. In People v. Minifie (1996) 13 Cal.4th 1055 (Minifie), the California Supreme Court concluded "that evidence of third party threats is admissible to support a claim of self-defense if there is also evidence from which the jury may find that the defendant reasonably associated the victim with those threats." (Id. at p. 1060.) The court explained: " 'A person claiming self-defense is required to "prove his own frame of mind," and in so doing is "entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear." (People v. Davis [(1965) 63 Cal.2d 648, 656].) The defendant's perceptions are at issue, and threats from a family and its friends may color a person's perceptions of that group no less than threats from an individual may color a person's perceptions of that individual. A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence "tend[ing] in reason to prove" that the fear was reasonable. (Evid. Code, § 210 [defining relevant evidence].) Threats from the group on the defendant's life would certainly tend in reason to make the defendant fearful. This is especially true where the group has a reputation for violence, and that reputation is known to the defendant. Such threats are relevant to the defendant's state of mind—a matter "of consequence to the determination of the action" (ibid.)—and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified." (Id. at pp. 1065-1066.)
It is also true that a victim's violent character may be proved by violent acts by the victim both preceding and following the victim's confrontation with a defendant. (See People v. Shoemaker, supra, 135 Cal.App.3d 442, 448.)
Unlike defendant, we do not see how this precedent combines to justify admitting evidence of a possible post-crime third party threat. As noted in part 5B ante, a victim's violent character may be relevant on two different grounds, either to establish that he was the aggressor in a confrontation with the defendant, or, when the defendant is aware of the victim's violent tendencies, to establish that the defendant's fear during their confrontation was reasonable. Minifie represents an extension of this second ground to fear of a victim's allies.
We do not understand defendant to argue that the purported third party threats were relevant on the first of these grounds. The threats were not offered to prove that Zuk was the aggressor during their confrontation. That an associate of Zuk's might threaten to retaliate against defendant for killing Zuk does not demonstrate that Zuk himself was a violent person.
Defendant asserts that "[t]he proferred evidence of third party threats and [defendant's] request for security in jail corroborated his testimony regarding his fear of Zuk and his associates, namely the fourth person [defendant] saw when the homicide occurred." Defendant seeks to base this argument on Minifie.
The argument falls apart under scrutiny. What qualifies as corroboration has been developed in the area of accomplice testimony, which must be corroborated to support a conviction. (Pen. Code, § 1111.) One basic principle is that a witness cannot corroborate himself. (People v. Bowley (1963) 59 Cal.2d 855, 859.) Corroboration of a witness's testimony must come from an independent evidentiary source, such as another witness. (People v. Avila (2006) 38 Cal.4th 491, 562-563.)
Defendant asserts that "all corroborative evidence occurs after the fact." Unless he has corroborative testimony in mind, he is mistaken. In Minifie, supra, 13 Cal.4th 1055, the defendant claimed that he had been receiving threats from the family and friends of a man he had killed in self-defense. (Id. at p. 1062.) Offered in corroboration was that this family had a reputation for making and carrying out threats of violence. (Id. at pp. 1061-1062.) This corroborative arose before a family friend punched the defendant and before the defendant responded by shooting him. (Id. at pp. 1060-1061.)
Defendant acknowledges that there was substantial testimony by defendant and his friends that he was afraid of Zuk and his associates. What defendant overlooks is that he could not corroborate himself, no matter how many times he said the same thing to friends. It would not corroborate defendant's self-proclaimed fear that he repeated it after he killed Zuk by requesting protective custody.
What would corroborate defendant's fear was if another witness—in Minifie, it was a police officer—were to testify that defendant's associates had " ' "a reputation for violence, a reputation for making threats with the means of carrying them out and a reputation for being extremely dangerous." ' " (Minifie, supra, 13 Cal.4th 1055, 1061.) We do not understand defendant to have actually offered any corroboration of these post-homicide events. His offers of proof were simply that defendant, but no other witnesses, would describe them.
As to the evidence of third party threats, defendant offered to prove (1) a disc jockey in a San Francisco night club told defendant that some people at the club would kill defendant for killing Zuk the previous night and (2) defendant received a secret note in jail saying that he was now responsible for the large debt of the man he had killed. Even assuming that defendant was able to offer independent evidence that these threats were made, they were made after he killed Zuk.
This is comparable to the evidence excluded in People v. Tafoya (2007) 42 Cal.4th 147, where the defendant sought to establish that he was afraid of two people he shot because they associated with a dangerous person, Gattenby. Citing Minifie, the court reasoned that "evidence that Gattenby was dangerous was relevant to defendant's claim of self-defense only if defendant knew of Gattenby's reputation for dangerousness and was afraid of him." (People v. Tafoya, supra, 42 Cal.4th 147, 165.) In that case, however, there was no evidence that, prior to the shooting, the defendant either knew of Gattenby's reputation for dangerousness or of his association with the victims or that Gattenby had acted in an aggressive manner toward the defendant or his codefendant. (Id. at pp. 165-166.) Under these circumstances, Gattenby's reputation for dangerousness was irrelevant to the self-defense claim. (Id. at p. 166.) Because defendant here was not aware of these subsequent threats at the time of his confrontation with Zuk, they were irrelevant to the reasonableness of his fear of defendant and his associates during that confrontation.
We conclude that the offered evidence, which occurred after defendant's final confrontation with Zuk, was not probative of defendant's state of mind during their confrontation. Moreover, to the extent that the post-homicide statements could be construed as remotely probative of defendant's pre-homicide state of mind, we conclude that there was no abuse of discretion in excluding them as substantially more time-consuming, prejudicial, confusing, or misleading than probative under Evidence Code section 352.
7. DISPOSITION
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
WE CONCUR:
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MIHARA, ACTING P.J.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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