Opinion
D071000
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TYLER RAY BREMNER, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE352613) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Tyler Ray Bremner of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1) and battery with serious bodily injury (Pen. Code, § 243, subd. (d); count 2). The jury did not find true that Bremner personally inflicted great bodily injury on the victim under Penal Code section 12022.7. subd. (a) and section 1192.7, subdivision (c)(8) as to counts 1 and 2. Bremner admitted he served a prior prison term. (Pen. Code, § 667.5, subd. (b).)
The court sentenced Bremner to prison for four years.
Bremner appeals, contending the trial court prejudicially erred in excluding evidence that the victim in this case, Pete Blakely (Pete), had been involved in a heated altercation with a man named Timothy Cole at a barbecue after Pete allegedly pinched and grabbed Cole's girlfriend. These events allegedly occurred about an hour or an hour and a half before Bremner assaulted Pete. Bremner claims this evidence of Pete's "aggressive and violent character" was admissible under Evidence Code section 1103, subdivision (a)(1), in support of Bremner's claim that he had acted in "self-defense" after Pete "attacked" him. We conclude that the trial court did not abuse its discretion in excluding this evidence.
We use Pete's first name for purposes of clarity since Pete's wife, Rachel Blakely (Rachel), was a witness in the case.
Unless otherwise specified, all subsequent statutory references are to the Evidence Code.
Although Bremner's attorney offered a detailed offer of proof, there is conflicting reports about what actually occurred at the barbecue, Cole's girlfriend declined to be interviewed about the incident, and multiple witnesses from the barbecue would have been necessary at trial to establish what actually occurred. As such, we determine that Cole and Pete's altercation at the barbecue is precisely the type of evidence that a trial court has wide discretion to exclude under section 352. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Alternatively, we find the connection between what allegedly occurred at the barbecue is so tenuously related to the subsequent altercation between Bremner and Pete (even under Bremner's self-defense theory) that the trial court was well within its discretion to exclude evidence of the barbecue incident on relevancy grounds as well.
In addition, we find no merit in Bremner's assertion that the trial court erred in excluding evidence of Pete's commission of an act of domestic violence that resulted in a 1997 misdemeanor conviction.
For these reasons, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution
On July 4, 2015, at around 8:45 p.m., Pete was driving his truck down a street in Ramona with his wife, Rachel, looking for a friend's house. As they drove north on 12th Street past the intersection with H Street while looking for the house, two males, Bremner and codefendant Dustin Dickson, approached the truck on foot. A friend of Dickson and Bremner's, Amber Robershaw, also approached the truck. Two children, who were with Bremner's group, also were in the street. The group caused Pete to stop the truck. Bremner angrily accused Pete of speeding and told him to slow down. The adults in Bremner's group yelled expletives and made obscene gestures toward Pete and Rachel. Pete said that he was not speeding and that he was looking for an address. In addition, Pete told Bremner that his kids should be on the sidewalk, rather than in the street.
Pete continued driving north on 12th Street and stopped at a gas station at the end of the street. While at the gas station, Rachel sent a text message to her friend seeking the address of the house that they were looking for. Pete then began driving south on 12th Street toward H Street. While he was driving down the street, Pete heard his friend call out, "Hey Pete, we're over here." Pete realized that he had just driven by the house that they were looking for. Pete stopped at the intersection of 12th and H Streets, turned left onto H Street, and began to back up, so that he could again drive north on 12th Street.
While Pete was backing up, Bremner punched Pete in the face through the opening in the truck's window. Rachel said, "What the hell was that?" Pete replied, "Somebody just slugged me through the window of my car." Rachel grabbed pepper spray out of her purse and got out of the truck. Pete pulled the truck to the side of the road and turned it off.
The truck did not have windows.
Dickson and Robershaw were near the truck. Rachel sprayed them both with pepper spray. Dickson punched Rachel in the jaw. As Pete was getting out of the truck, Bremner punched him in the right side of the face, above the eye. Pete fell to the ground and lost consciousness.
Apryl Cordoba saw Bremner, Dickson and Robershaw on 12th Street immediately after Pete drove north on 12th Street. She heard Bremner say, "Why are they speeding?" and "I'm going to kick their ass." Bremner seemed upset. Shortly thereafter, Cordoba saw the Blakelys' truck pass Bremner's group as the truck traveled south on 12th Street. Bremner appeared to be yelling at the people in the truck. The truck stopped at the intersection of 12th Street and H Street. After the truck stopped, Bremner and Dickson ran toward it. Cordoba called 9-1-1 because she knew that there was going to be a fight. While calling 9-1-1, Cordoba walked over to the Blakelys' truck. Dickson was walking away from the truck. Bremner was standing over Pete doing "something" with his arms.
Police responded to the scene. After making contact with Pete and Rachel, police spoke with Bremner, Dickson, and Robershaw at a nearby house. Bremner was angry, uncooperative, and smelled of alcohol. Bremner had a fresh scratch on his back that was not bleeding, and did not appear to have any other visible physical injuries.
As a result of the incident, Pete's eyes were extremely swollen and he sustained numerous fractures to the bones in his face. In addition, Pete suffered several lacerations on his forehead that required 10 or 11 sutures to close. Pete also had difficulty closing his jaw. For a period of six months after the incident, Pete was unable to eat solid food. In addition, at the time of trial (which occurred approximately one year after the incident), Pete continued to suffer from sporadic headaches and had difficulty seeing out of his left eye, among other maladies.
Defense
Bremner testified in his own defense. Bremner admitted that he had been convicted of a felony in 2012. Bremner also recalled the events leading up to an incident in 2011 with his former wife during which he was heavily intoxicated. However, he said that he did not recall having head butted his former wife during the incident.
According to Bremner, at around 8:30 p.m. on the night of the incident, he was walking down 12th Street with his children en route to a place to watch fireworks. Dickson, Robershaw, and Robershaw's children also were walking with him and his children. As they were walking, Bremner's daughter was nearly struck by Pete's truck. Bremner yelled at Pete to "slow the 'F' down." Pete yelled at Bremner to stay out of the road. Pete also said something like, "We'll see how tough you are after I get my bat or gat or come back." The truck then drove away.
Bremner and his group continued walking on 12th Street toward H Street. Moments later, Bremner saw the truck stopped at a stop sign at the intersection of 12th and H Streets. As Bremner approached the truck, Rachel jumped out of the car and sprayed Bremner in the face with pepper spray. Pete drove the truck over onto a dirt lot and got out. Pete "rushed" Bremner and started swinging his fists. Bremner backed up and swung his fists at Pete, hitting him several times.
Robershaw testified that she saw the Blakelys' truck speed north on 12th Street. Robershaw saw the truck again a few minutes later as it passed Robershaw and her group traveling south toward H Street. When the truck stopped at the stop sign, Rachel got out. Robershaw heard either Dickson or Bremner say, "This chick has pepper spray." Robershaw then heard screaming. Rachel ran over to Robershaw and sprayed her in the face with pepper spray. Rachel also sprayed several of the children with pepper spray. Robershaw saw Pete get out of the truck and run at Bremner and Dickson. Pete was swinging at Bremner and Rachel also was hitting Bremner. Robershaw tackled Rachel. The fight ended quickly and Robershaw and Dickson went back to their children, who were standing nearby.
Robershaw's 12-year-old daughter was walking with the Bremner group on the night in question. She saw the Blakelys' truck speed down the road close to where they were walking. Bremner and Robershaw yelled at the driver to slow down. Shortly thereafter, the truck reappeared. Rachel got out of the truck and sprayed Robershaw and some of the children with pepper spray. A fight ensued.
The defense played a video recording at trial of portions of the incident that Robershaw's daughter recorded on a cell phone. The video is extremely dark and the action recorded is barely visible. On the audio portion of the video, Robershaw can be heard screaming that she had been sprayed with mace.
The video was not mentioned in the parties' briefing, and Bremner did not request the transmission of the exhibit containing the video to this court. We directed the trial court to transmit the exhibit containing the video to this court for our review. (Cal. Rules of Court, rules 8.320(e) & 8.224(d).)
Numerous character witnesses testified that Bremner was a peaceful person.
DISCUSSION
I
EXCLUSION OF THE BARBECUE INCIDENT
A. Bremner's Contentions
Bremner claims that the trial court committed reversible error in excluding evidence of Pete's conduct at a barbecue occurring allegedly an hour and a half before the events that led to the charged offenses. Bremner contends that the evidence was relevant to prove Pete's character for violent and aggressive behavior under section 1103.
B. Background
Before trial, the People filed a motion in limine to exclude evidence of Pete's conduct at a barbecue/pool party that occurred on the same day as the charged offenses. According to the People's motion, the incident at the barbecue occurred after Cole accused Pete of "pinch[ing] Cole's girlfriend on the butt." The People stated that "Cole called out Pete and [they] argued [on] the front lawn," but that the "incident never became physical."
It appears from the record that the prior incident occurred at a barbecue being held at a pool party. Thus, references to a "barbecue" or a "pool party" are to the same event.
In their motion, the People acknowledged that section 1103, subdivision (a)(1) "may allow for extrinsic evidence of the victim's character for violence when offered by the defendant." However, the People maintained that "the anticipated evidence to be proffered by the defense is irrelevant pursuant to an Evidence Code section 352 analysis." In support of their position, the People offered four reasons to exclude the subject evidence.
First, the People asserted that there was no evidence that Bremner was aware of the earlier incident or that he knew Pete. Second, the incident between Cole and Pete was nonviolent. Thus, the barbecue incident would not qualify as evidence exhibiting Pete's past violent character. The People therefore argued such evidence was misleading and irrelevant. Third, Cole's testimony was biased. He admitted that he does not like Pete and gets a "bad vibe" from him. Fourth, Cole's statements about the incident were inconsistent, and thus, unreliable. The People asserted, under section 352, Cole's testimony would be misleading and would add no probative value regarding Pete's character for violence. The People summed up their argument, "[i]n conclusion, any testimony from Cole or any other witness to the earlier pool party is irrelevant, misleading, biased, inconsistent and ultimately not within the scope of Evidence Code section 1103 subd. (a)(1)."
The People attached three memoranda to their motion. The first involved a defense investigator's telephone interview of Cole. In that memorandum, the defense investigator wrote that Cole told her "he can honestly say he really does not like [Pete]." Cole claimed that he become upset when he saw "Pete pinch . . . Cole's girlfriend on the ass." Cole felt Pete's behavior was unacceptable and he "called [Pete] out on it." The two men started to argue, and Cole suggested they take the argument out front, away from the party. Cole states that Pete and he almost got into a fist fight, but family members stepped in between them. Cole also stated that he "never felt comfortable around" Pete and that he "always had a weird feeling around Pete . . . and felt like he always had to be on guard." Cole admitted that he knew Pete was drinking, but could not say how much alcohol he had consumed at the barbecue.
The second memorandum attached to the People's motion was prepared by an investigator from the District Attorney's Office who had interviewed Cole over the telephone. That memorandum contained the following description of the incident as relayed by Cole:
"Tim Cole said he and his girlfriend, Carly, were at a pool party. They were in the pool when he saw Pete Blakely brush up against Carly, which upset him. He believed it was intentional. Blakely told
him it was an accident. Cole said they argued but nothing physical happened. He did not recall what time the incident occurred."
According to the second memorandum, Cole stated he did not know if Pete had been drinking at the barbecue. In addition, he reiterated that he does not like Pete "because he gets a weird vibe from him." Cole also stated that Carly did not want to be interviewed in regard to the barbecue incident with Pete.
The third memorandum memorialized an interview of Pete by an investigator from the District Attorney's Office. That memorandum offered a third version of what occurred at the barbecue. Pete claimed that he "accidently touched Carly on her breast while playing beer pong." Cole "became heated and acted like he wanted to hit Pete." However, Pete told Cole it was an accident and " 'hugged' " Cole to "diffuse the situation." Pete also said that Cole regularly gets drunk at parties, becomes volatile, and "always leaves" upset. Pete identified four witnesses to his accidental touching of Carly. Further, Pete represented that one of those witnesses told him that she saw the incident and it was an accident. Pete additionally stated Carly was trying to diffuse the situation and never complained about him touching her breast inappropriately.
Before trial, the trial court held a hearing on the People's motion in limine. At the outset of the hearing, the trial court indicated that "the tentative would be to exclude [evidence of the barbecue incident]." The court explained, "I don't see how it is in any way relevant to the alleged assaults that take place later . . . . I do not believe it is relevant that partygoers in . . . gathering number one . . . be able to talk about his brushing of her butt and the confrontation, according to everyone, it didn't get physical anyway. . . . The physical confrontation [at the barbecue] is absolutely irrelevant."
Bremner's counsel responded:
"I believe it is very relevant, your honor. This is a family party with about 50 people: Mr. Cole, his girlfriend — it is not just a brushing. We talked to Mr. Cole a couple of times, and he said he saw Pete Blakely pinching his girlfriend's butt and confronted him. It became very argumentative to the point where it almost came to blows outside the party itself where people were around."
The court, the prosecutor, and Bremner's counsel then discussed when the incident at the barbecue had occurred. The prosecutor argued there was no evidence establishing when the barbecue incident took place. Bremner's counsel stated that there was a witness who would testify that the barbecue incident had occurred in "the evening" of the charged offenses.
The events that led to the charged offenses occurred at approximately 9:00 p.m.
The court then asked Bremner's counsel: "How is [Pete] potentially pinching this woman's butt relevant to the charge that your client assaulted him from the car and thereafter when he got out in an hour and a half, let's say."
Bremner's counsel responded:
"It is relevant because it goes to the issue of [Pete] - - it goes to the issue of [Pete] actually instigating things. Almost being in a fight, being hopped up on adrenaline, and possibly intoxicated, and then being in a hot rod driving up and down 12th Street in Ramona, being frustrated and overreacting and causing the incident, so it is very relevant, your honor. It shows that he's aggressive. He had an aggressive instinct before this other incident happened."
The court was not persuaded and ruled as follows:
"All right. The ruling will remain as indicated. Any reference to the physical confrontation an hour to an hour and a half before with unrelated parties is excluded. . . . [T]here will be no reference to any prior physical contact between unrelated parties."
A few days later, at another pretrial hearing, Bremner's counsel stated that she wished to re-address the trial court's ruling granting the People's motion in limine. Bremner's counsel argued:
"I am perplexed and confused as to the court's decision to grant the motion to exclude any evidence of the prior barbecue incident where [Pete] got into a very aggressive verbal confrontation and almost came to blows outside of the pool party where he was, based on [Pete's] behavior of pinching Mr. Cole's girlfriend's butt several times and then grabbing a handful of her breasts causing Mr. Cole to be upset and to confront [Pete]."
Bremner's counsel then read into the record a portion of a written offer of proof concerning the barbecue incident, which she also lodged in the record. Bremner's counsel stated:
"On January 4, 2015, [Pete] was at a barbecue, a family barbecue, where Mr. Cole was also in attendance -- I mean July 4. Thank you. July 4, 2015. [¶] There was a family barbecue with approximately 50 people where Mr. Cole and [Pete] were. Mr. Cole had his girlfriend there. He witnessed [Pete] drinking and also pinching his girlfriend's bottom in the pool several times during the party going on, maybe a beer pong game. Mr. Cole got upset, was going to confront [Pete]. When he was going to do that, then [Pete] then was witnessed to grab a handful of Mr. Cole's girlfriend's breasts. At that point in time, Mr. Cole confronted [Pete] as to his behavior. [¶] The confrontation got heated and went outside in front of [the] house. This was approximately 7:00 in the evening that this happened. [Pete] had been at the party since 9:30 or 10:00 in the morning and had been drinking. At the time this incident happened, it was about 7 o'clock. Both Mr. Cole and [Pete] were equally aggressive in each other's faces and it almost came to blows had it not been for other people surrounding them and breaking up the fight. Mr. Cole and his girlfriend left. Shortly after that, [Pete] and his wife left also. [¶]
So it was about 7:00, 7:15, that they left, and they -- [Pete] stated that his 4th of July was ruined based on this particular incident. He then immediately went home, got in his hot rod, went to 12th Street; and that is when he had contact with Mr. Bremner and Mr. Bremner's family. He was steamed. He should not have been driving according to Mr. Cole. And based on that, your honor, I think it this highly relevant as to his mental state, the fact that this is a self-defense and defense-of-others case and the fact that he was already steamed and upset and aggravated when he had contact with Mr. Bremner and thus reacted in a manner of someone that is drunk and angry and reacted and got into a fight with Mr. Bremner and was the initial aggressor.
The written offer of proof predominantly mirrored what Bremner's counsel said during the hearing. In pertinent part, it stated: "Approximately an hour to an hour and a half prior to [Pete's] encounter with Mr. Bremner, [Pete] was at a family barbecue. [Pete] was drinking and playing beer pong. While at the party, [Pete] was seen repeatedly pinching the buttocks of a woman at the party. During a game of beer pong, [Pete] grabbed a handful of the woman's breast. The woman's boyfriend, Tim Cole, saw [Pete] assault his girlfriend and immediately confronted him. The argument quickly became heated, and the men took the argument into the front yard of the house. The argument almost turned physical but was broken up by other family members. [Pete] left the party with his wife and headed home. The couple picked up their hot rod, and then headed to 12th and H St. where they encountered [Mr.] Bremner and his family. [¶] During an interview with Deputy District Attorney Carberry and his investigator, [Pete] said that his whole day was ruined due to the incident at his family's barbecue. He said this incident ruined his 4th of July. [Pete and his wife] were upset and angry when they left the barbecue. [¶] Tim Cole is the boyfriend of Carly, the woman who [Pete] assaulted. Mr. Cole's mother is the fiancé of [Pete's wife's] adopted father. [Mr.] Cole would testify that he was watching [Pete] in the pool and Pete kept pinching Carly's butt. After the game of beer pong was over, [Cole] intended to tell Pete to stop touching everyone. That's when he saw [Pete] grab a handful of Carly's breast. This angered [Cole]. He approached [Pete], and they exchanged words. Things started to escalate to an aggressive confrontation and the argument was taken to the front of the house. Both men were face-to-face yelling at each other and the argument almost came to physical blows. However other family members stepped in between them and separated them. [¶] Additionally, [Pete] has denied drinking more than two beers on July 4, 2015. [Cole] would testify that [Pete] had been drinking at the barbecue. [Cole] was surprised that Pete was even driving because he had been drinking that day. [Cole] believes that [Pete] should never have been driving that night."
The prosecutor responded:
"Your honor, there has been about three statements taken from Mr. Cole at this point. I believe counsel's is a mixture of all three. The People would add that on May 10th of this year, an investigator from the District Attorney's Office contacted Mr. Cole who indicated to that investigator that Cole said, 'He did not know if [Pete] had been drinking at the party but did admit that he had three to four beers.' [¶] There is no evidence as to the time that any of this took place based on any of the reports from Mr. Cole. And it was [Pete's] opinion that he and his wife left the pool party, went home, and took a nap. There is no indication that they went immediately from the pool party to her house to pick up the hot rod to go to the fireworks display. I believe that the evidence that [Pete] will submit at trial is sufficient."
After Bremner's counsel attempted to address some of the inconsistencies in Cole's two statements, the trial court reaffirmed its ruling excluding the evidence, ruling as follows:
"The ruling will remain as indicated. And parenthetically, I find it no more relevant than if either Mr. Bremner . . . had been in the party an hour and a half, two hours beforehand, had confrontations with unrelated people, and the People were seeking to get it in to show how they were going to act when they had their confrontation. There is not enough for me to allow it in. The ruling remains as indicated."
C. Legal Principles
Generally, evidence of a person's character when offered to prove his or her conduct on a specific occasion is inadmissible. (§ 1101, subd. (a).) However, section 1103, subdivision (a)(1) provides an exception to this general rule and permits the admission of character evidence in a criminal trial when the evidence is offered to prove conduct of the victim in conformity with the victim's character. (See People v. Gutierrez (2009) 45 Cal.4th 789, 827.)
Section 1103, subdivision (a) provides:
"(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
"(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
"(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1)."
Section 1103, subdivision (b) permits the People to introduce "evidence of the defendant's character for violence or trait of character for violence," after the defendant has presented evidence "that the victim had a character for violence or a trait of character tending to show violence."
Section 1103, subdivision (b) provides: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)."
As the Supreme Court explained in summarizing section 1103's application in a case in which the defendant seeks to offer evidence that the victim had a violent character: "[I]f . . . a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence demonstrating that (1) the victim was not a violent person, and (2) the defendant was a violent person, from which the jury might infer it was the defendant who acted violently." (People v. Fuiava, (2012) 53 Cal.4th 622, 696; see People v. Rowland (1968) 262 Cal.App.2d 790, 797 [stating that under section 1103 "it is . . . permissible . . . to prove [a victim's] aggressive and violent character by specific acts of the victim on third persons"]; People v. Smith (1967) 249 Cal.App.2d 395, 404 [discussing the common law leading to the adoption of section 1103 and stating "[t]he law recognizes . . . that one who is turbulent and violent may more readily provoke or assume the aggressive in an encounter"].)
However, evidence offered under section 1103 in support of a defendant's claim of self-defense is subject to exclusion under section 352. (See People v. Shoemaker (1982) 135 Cal.App.3d 442, 446.) A trial court has "broad" discretion to exclude evidence where "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 misleading the jury." (§ 352; see People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
We review relevancy and section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) A trial court's evidentiary rulings admitting or excluding evidence are reviewed for abuse of discretion, " ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.)
D. Analysis
In his opening brief, Bremner agues evidence of the barbecue incident was admissible character evidence as to Pete under section 1103, subdivision (a)(1). He also contends that section 352 "was not a basis to exclude the incident." Not surprisingly, the People take the position that the trial court properly exercised its discretion to exclude the barbecue incident under section 352. In his reply brief, Bremner repeats his assertion that the evidence was admissible under section 1103 and could not be excluded under section 352. Therefore, the briefs in the instant matter appear to frame the issue as an application of section 1103 subject to section 352.
The framing of the issues changed at oral argument. Initially, Bremner's counsel conceded that the trial court's ruling was based on section 352. However, in response to this court's questioning, he walked backed his concession and took the position that the trial court simply ruled the evidence of the barbecue incident was not relevant and did not analyze the evidence under section 352. We therefore review the record to ascertain the context of the trial court's ruling below.
In the People's motion in limine to exclude evidence of the barbecue incident, they acknowledged that section 1103, subdivision (a)(1) may allow "for extrinsic evidence of the victim's character for violence when offered by the defendant," but maintained the barbecue incident would be "irrelevant pursuant to Evidence Code section 352 analysis." At first blush, we find the People's reference to relevancy under section 352 somewhat confusing. Typically, a court does not exclude evidence as irrelevant under section 352, but, under that section, the court has discretion to exclude even relevant 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." (§ 352.) Thus, normally, a party would argue that even if evidence is relevant, the court should exclude it under section 352.
Although inartfully conveyed in the first instance, we find that the People argued in their motion in limine that the evidence of the barbecue incident should be excluded under section 352. Among other arguments, the People emphasized that the interaction between Pete and Cole as nonviolent, Cole was biased against Pete, and Pete's statements were inconsistent and unreliable. Against this background, the People maintained "[p]ursuant to Evidence Code section 352, this testimony is misleading and will add no probative value to the victim's character for violence." In other words, the People were arguing that any probative value of the evidence of the barbecue incident was substantially outweighed by confusing the issues or misleading the jury.
At the hearing of the motion in limine, the trial court appeared to have adopted the People's reference to the barbecue incident as "irrelevant" under section 352. The court indicated that its tentative ruling was to exclude the evidence because it did not "see how it is in any way relevant to the alleged assaults that take place later." In response to Bremner's counsel's arguments regarding why the evidence should be permitted at trial, the court asked how long before the subject assault did the alleged barbecue incident take place. The defense attorneys and the prosecutor disagreed about when the barbecue incident occurred. Bremner's counsel indicated that she was aware of a third party witness who would be testifying about the timeline of the barbecue incident.
The court further questioned the probative nature of Pete's alleged pinching of Cole's girlfriend's butt in relation to the subsequent interaction between Bremner and Pete leading to the charged offenses. Bremner's counsel indicated that the pinching showed that Pete was the instigator who was "hopped up on adrenaline," "possibly intoxicated," "frustrated[,]" and "causing this incident." The court was not persuaded and did not alter its original position.
Against this backdrop, we are satisfied that the trial court understood and fulfilled its responsibilities under section 352. (People v. Garceau (1993) 6 Cal.4th 140, 182.) "[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so." (People v. Williams (1997) 16 Cal.4th 153, 213.) Our conclusion is further buttressed by the briefs in this matter, which all addressed the admissibility of the evidence of the barbecue incident under section 352.
Having determined that the trial court considered the admissibility of the barbecue evidence under section 352, we next determine whether the court abused its discretion in excluding the evidence under that section. Bremner argues the court abused its discretion in excluding the evidence, asserting the incident was "crucial to prove Pete's behavior with [Bremner] was consistent with Pete's prior aggressive behavior[,]" which had occurred just a short time earlier. In addition, Bremner insists, based on the offer of proof, Cole would have been the only witness to testify on behalf of the defense about the barbecue incident thus implying a mini-trial would not be necessary to establish what occurred during the barbecue incident. We disagree.
We acknowledge that Bremner's trial counsel provided a very in depth offer of proof. We also note that the offer of proof does not seem to be based on any material in the record, but instead, includes portions of various statements given to different people at different times. We mention this fact not to suggest Cole would not be credible, but merely to illustrate that the admission of the barbecue incident would require much more than Cole's testimony. Indeed, Bremner's trial counsel admitted as much when she stated she wanted a third party to testify as to the timing of the altercation between Cole and Pete.
Here, Bremner's argument that evidence of the barbecue incident is admissible under section 1103, subdivision (a)(1) hinges on two assumptions. First, the incident happened about an hour and an hour and a half before Bremner allegedly assaulted Pete. Second, the barbecue incident shows Pete's aggressive behavior because he pinched Cole's girlfriend and then had a heated argument with Cole. However, the record before us shows very different versions of what occurred during the barbecue.
For example, there is disagreement regarding when the barbecue incident actually occurred. Bremner represents that a third party witness would testify that Pete left the barbecue just an hour or two before the altercation with Bremner, but admits that the prosecution would provide evidence that Pete left the barbecue in the early afternoon. In fact, Pete told the district attorney's investigator that he and his wife left the barbecue, went home, and napped before heading to his friends' house and encountering Bremner.
In addition, there is conflicting evidence regarding what occurred, i.e., how Pete touched Cole's girlfriend and what happened between Cole and Pete. And some of the discrepancies are from different accounts just provided by Cole. Further, Pete's recollection of the barbecue incident differs from both versions offered by Cole.
Cole gave a statement to a defense investigator. In that statement, Cole said that he became angry when he saw Pete pinch Cole's girlfriend's butt so he "called him out on it." Cole stated that Pete "got defensive and fired up." The men were arguing and Cole suggested they move the argument out front where they argued some more, where they almost got in a fist fight but family members stepped between them. In this statement, Cole recalled that Pete was drinking, but he did not know how much.
Cole also gave a statement to the district attorney's investigator. In that statement, he claimed he saw Pete "brush up against" Cole's girlfriend, "which upset him." Cole believed Pete did it intentionally, but Pete argued it was an accident. Cole stated that he and Pete argued, but nothing physical happened. Also, Cole stated that he did not know if Pete had been drinking at the barbecue.
Additionally, Pete gave a statement to the district attorney's investigator regarding what occurred at the barbecue. Pete stated that he accidently touched Cole's girlfriend on her breast while playing beer pong. According to Pete, Cole became "heated" and "acted like he wanted to hit Pete." Pete identified four witnesses to the incident, one of whom told Pete she believed Pete accidently touched Cole's girlfriend. Further, Cole's girlfriend was "trying to diffuse the situation" and "never said anything or complained about Pete touching her breast inappropriately."
Further exemplifying the uncertainty in the record regarding what occurred at the barbecue, the offer of proof provided by Bremner's trial counsel paints a different picture altogether in which Cole witnessed Pete pinch Cole's girlfriend's butt multiple times in the pool and then grabbed her breast when playing beer pong.
These varying accounts of what occurred during the barbecue underscore that the prosecution and defense differed significantly about what occurred at the barbecue. As such, it logically follows that to present the barbecue incident to the jury would have required multiple witnesses. Bremner's trial counsel acknowledged that he would need Cole and at least one other third party witness. In addition, the prosecution would have called Pete to testify as to the incident, and Pete identified four other witnesses to the incident. Also, although she indicated no desire to be interviewed, it seems probable that either the prosecution or the defense would want to call Cole's girlfriend. Thus, it appears that the barbecue incident would require the testimony of at least four to eight individuals. Moreover, we also could envision Bremner calling additional witnesses from the barbecue to refute the testimony of the third party witnesses identified by Pete. Accordingly, despite Bremner's argument to the contrary, it appears that the barbecue incident would require a mini-trial simply for the defense to try to establish what happened and that the incident is somehow admissible under section 1103, subdivision (a)(1). We are satisfied that the court did not abuse its discretion in excluding the subject evidence because its probative value would have been substantially outweighed by the probability that its admission would necessitate an undue consumption of time. (§ 352.)
Further, even if we were to find that the trial court did not analyze the evidence under section 352, we nevertheless would conclude the court did not abuse its discretion in excluding the evidence of the barbecue incident as irrelevant. Relevant evidence is that which tends to "prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) A trial court may not admit irrelevant evidence, but it has broad discretion in determining whether evidence is relevant. (See People v. Babbitt (1988) 45 Cal.3d 660, 681.)
Here, Bremner contends evidence of the barbecue incident was relevant and admissible under section 1103, subdivision (a)(1) to show that Pete exhibited "violent and aggressive behavior" and then acted in conformity when he attacked Bremner after Bremner yelled at him about his driving. Alternatively stated, Bremner insists evidence of the barbecue incident is relevant to support his theory of self-defense.
The incident between Bremner and Pete was preceded by Bremner yelling at Pete, accusing him of speeding. According to Pete, a few minutes after this first altercation ended, Pete drove by Bremner again and Bremner approached Pete and "blind-sided him with a punch to the face through the open window [of the truck]." In contrast, in his offer of proof, Bremner claimed that, a few minutes after the first altercation ended, Pete stopped his truck, got out, and "started swinging wildly in attempts to punch Mr. Bremner." Bremner's argument here is that Pete acted in conformity with his aggressive behavior displayed in the barbecue incident. To agree with Bremner, we would have to determine that the barbecue incident showed that Pete had a character for violence, and thus, the incident supported Bremner's theory of defense that Pete attacked him. In addition, to find reversible error here, we further would have to determine the court abused its discretion in excluding the subject evidence. This we cannot do on the record before us.
We quote from the People's motion in limine.
Bremner's claim of self-defense rests on his testimony that, after he yelled at Pete for driving too fast, Pete got out of his car, ran at Bremner, and attacked him by swinging his fists at him. In the barbecue incident, even accepting the offer of proof as true, we see no conduct by Pete like what Bremner claims to have occurred before he struck Pete. According to the offer of proof, Pete pinched Cole's girlfriend's butt and later grabbed her breast. We fail to see how such conduct would establish that Pete is the type of violent character who would get out of his car and attack a man after the man yelled at him. We would find Pete's conduct toward Cole's girlfriend at the barbecue incident relevant if Bremner claimed Pete pinched, grabbed, or otherwise sexually assaulted a woman, and Bremner struck Pete in response to such conduct. But that is not what Bremner claims occurred.
In addition, the offer of proof shows that Pete argued with Cole when Cole confronted him. Although there are allegations that Pete and Cole's altercation may have turned physical, it did not. Moreover, Pete, when confronted by Cole for alleged wrongdoing, did not physically attack Cole. This is in stark contrast to the way Bremner claims Pete responded to Bremner yelling at him. Per Bremner, Pete immediately attacked him. Pete responded in a physically aggressive way after Bremner verbally confronted him. Pete did no such thing at the barbecue under anyone's version of events.
The trial court's comments after Bremner's counsel asked the court to re-address the People's motion in limine show the court reached the same conclusion regarding the relevancy of the incident. In reaffirming that it was excluding the evidence, the court commented:
"I find it no more relevant than if either Mr. Bremner . . . had been in the party an hour and a half, two hours beforehand, had confrontations with unrelated people, and the People were seeking to get it in to show how they were going to act when they had their confrontation. There is not enough for me to allow it in."
We do not read the court's comments as indicating that the court was applying the wrong legal standard, but instead, to indicate that the barbecue incident did not show that Pete was a violent, aggressive person, at least not to the extent that he would engage in fisticuffs in response to someone yelling at him. The court's use of Bremner as the "bad actor" at the barbecue does not show it was applying the incorrect legal standard or otherwise confusing the admission of character evidence as to a victim compared to a defendant. We interpret the court's comments as merely highlighting the degree to which the court believed the barbecue incident did not show the "bad actor" there as the type of person who would physically attack someone else. In other words, the evidence of what occurred during the barbecue incident did not support Bremner's claim of self-defense.
In summary, we determine the court did not abuse its discretion if it excluded evidence of the barbecue incident as irrelevant. Assuming the offer of proof accurately depicts what happened during the barbecue and would be supported by the evidence at trial, at most, it establishes that Pete is a profound cad, who is willing to inappropriately touch a woman and then verbally argue when the girlfriend's boyfriend confronts him. We believe it would take a tremendous leap of logic to find such an incident establishes Pete as an aggressive, violent person who would physically attack a man for yelling at him about his driving. It is because of this gap between the alleged circumstances of the barbecue incident and Bremner's theory of self-defense that we conclude the court did not abuse its discretion here.
Because we determine that the court did not error in excluding evidence of the barbecue incident, we find no merit in Bremner's claim that the exclusion of this evidence violated his right to federal due process as well as his Sixth and Fourteenth Amendment rights to confrontation. (See People v. Catlin (2001) 26 Cal.4th 81, 133, fn. 12; People v. Hall (1986) 41 Cal.3d 826, 834.)
II
THE EXCLUSION OF PETE'S PRIOR DOMESTIC VIOLENCE CONVICTION
A. Bremner's Contention
Bremner claims that the trial court erred in excluding evidence of Pete's prior domestic violence conviction.
B. Background
During a pretrial hearing, the following colloquy occurred:
"[The prosecutor]: Thank you. The People are motioning to exclude mention of Pete Blakely's prior misdemeanor, a 1997 domestic violence assault, from the State of Florida. I had a brief talk with counsel this morning. I had disclosed that matter to the previous counsel and failed to — by no intentional purpose — to let both counsel, current counsel, know of that conviction; but either way, I believe it is a remote situation from another state that has no bearing on this matter."
"The court: Do either of you plan on using it?"
"[Bremner's counsel]: I had no idea that it was available until this morning.
"The court: Would you like me to — I can give you a tentative and you can kind of think about it, and we can talk about it, and we can talk more about it on Monday if you like.
"[Bremner's counsel]: Okay.
"The court: I cannot recall a case where I allowed impeachment of a witness because of a misdemeanor conviction and certainly not a misdemeanor that is 20 — whatever it is.
"[The prosecutor]: Nineteen.
"The court: Thank you, . . . Nineteen years old. I would generally not allow that. [Bremner's counsel], I'll give you the weekend. If you come up with something you want me to take a look at it or make a record, I want you to get it to me on Monday; and we'll talk about it. Okay."
The admissibility of the prior conviction was not discussed again during the trial.
C. The Law
"A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself." (People v. Holloway (2004) 33 Cal.4th 96, 133 (Holloway); see People v. Ennis (2010) 190 Cal.App.4th 721, 735-736 (Ennis) [applying Holloway and agreeing with the People that "because the court issued no final ruling on the admissibility of the proffered testimony . . . and [defendant] voluntarily elected not pursue the matter further, he forfeited any claim of error based upon the exclusion of the testimony."].)
The court in Ennis explained that where a trial court makes clear that a tentative ruling is subject to further consideration, a defendant must obtain a final ruling on the matter to preserve the evidentiary claim on appeal:
"[Defendant] argues Holloway[, supra, 33 Cal.4th 96] is distinguishable, because the tentative ruling in this case was 'tentative' in name only, having been offered after the parties had engaged in 'three extensive discussions regarding this issue.' But, the distinction between a tentative ruling and a final one does not turn on whether the court has given significant consideration to the issue; it turns on whether the court has finished its consideration of the issue. Here, the court made clear it had not, and explicitly agreed to hear further argument on the issue the next day. It was [defendant], and not the court, who decided not to pursue the matter further, and thus it was [defendant] who abandoned the issue. Having done so, [defendant] cannot complain that the court erred in its ruling." (Ennis, supra, 190 Cal.App.4th at p. 736.)
In People v. Carter (2014) 227 Cal.App.4th 322, 329-330 (Carter), the court outlined the relevant law governing the admissibility of evidence of a witness's prior conduct for impeachment purposes:
"A witness may be impeached with prior conduct that involves moral turpitude, whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion pursuant to Evidence Code section 352. [Citation.] 'Past criminal conduct involving moral turpitude . . . has some logical bearing on the veracity of a witness in a criminal proceeding. . . .' [Citation.] [¶] . . . The trial court has broad discretion in determining the admissibility of impeachment evidence. [Citation.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, [and] whether it is near or remote in time . . . ."
D. Analysis
The trial court expressly stated that its "tentative" ruling was subject to further discussion if Bremner's counsel wished to discuss the admissibility of the evidence at a later hearing. Bremner's counsel did not raise the issue again. Thus, the claim is forfeited in this appeal. (Holloway, supra, 33 Cal.4th at p. 133; Ennis, supra, 190 Cal.App.4th at pp. 735-736.)
Further, even assuming for the sake of argument that Bremner had preserved his objection, and further assuming that Pete's Florida domestic violence conviction constituted prior conduct involving moral turpitude, there is nothing in the record demonstrating that the trial court abused its "broad discretion" in excluding the evidence. (Carter, supra, 227 Cal.App.4th at p. 329.) In particular, the court reasonably determined that the remoteness of the conviction warranted its exclusion. (Id. at p. 330.)
Bremner notes that the trial court permitted the People to impeach him with a 2012 felony conviction, and with the 2011 incident with his former wife, and argues that it was "vital [that] the jury have a balanced portrait of the individuals involved in the incident." We are not aware of any authority, and Bremner cites none, that would support his contention that, in ruling on the admissibility of evidence offered to impeach a witness, a trial court must consider the extent to which it has admitted impeachment evidence against the defendant. In any event, the impeachment evidence offered pertaining to Bremner was far more recent than Pete's 1997 misdemeanor conviction.
Accordingly, we conclude that Bremner has failed to establish any error with respect to the trial court's tentative exclusion of Pete's remote domestic violence conviction.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. I CONCUR: HALLER, J. AARON, J., Concurring and Dissenting.
I.
Introduction
In concluding that the trial court did not abuse its discretion by excluding evidence of Pete's combative conduct at a barbeque a short time prior to the altercation that led to the charges in this case, the majority purports to "affirm" an evidentiary ruling that the trial court never made. The majority concludes that the trial court "did not abuse its discretion in excluding the subject evidence because its probative value would have been substantially outweighed by the probability that its admission would necessitate an undue consumption of time," under Evidence Code section 352. (Maj. opn. ante, at p. 22.) Yet, the record makes clear that the trial court excluded the evidence of Pete's conduct at the barbeque based solely on its conclusion that the evidence was not relevant under section 1103, subdivision (a)(1), and did not exclude it under section 352. In fact, there is nothing in the record to suggest that section 352, or specifically, the undue consumption of time rationale, was even mentioned by either the parties or the trial court during the hearing on the motion to exclude the evidence. It is thus clear that we may not affirm the trial court's exclusion of the evidence on this basis.
Unless otherwise specified, all subsequent statutory references are to the Evidence Code.
I also disagree with the majority's alternative holding that the evidence was not relevant under section 1103, subdivision (a)(1) to prove that Pete was prone to aggression and violence. In my view, the evidence was relevant and admissible under that section to demonstrate that Pete became "fired up" and combative when verbally confronted at the barbeque, just as Bremner claimed he had after being verbally confronted by Bremner about his reckless driving on the night of the incident at issue. The evidence was therefore relevant to establish Bremner's self-defense claim.
II.
Evidence of Pete's conduct at the barbeque on the day of the charged offenses was
relevant to Bremner's self-defense claim under section 1103 , subdivision (a)(1);
the trial court did not exclude the evidence pursuant to section 352
Evidence of a victim's aggressive character may be admitted pursuant to section 1103, subdivision (a) where a defendant who is charged with an assault or battery contends that he was acting in self-defense in response to the victim's aggressive actions. (See Tyler v. Superior Court (1980) 102 Cal.App.3d 82, 89 [citing section 1103 and stating, "It is well established that evidence of past assaultive behavior is admissible in battery cases as pertaining to a fact in issue"].)
Prior to trial, Bremner filed a written offer of proof indicating his intent to present evidence at trial of Pete's "aggressive and violent character," pursuant to section 1103, subdivision (a)(1), in support of Bremner's claim that he had acted in "self-defense" after Pete "attacked . . . Bremner." Specifically, Bremner sought to present evidence that "just an hour to an hour and half before the altercation with Bremner," Pete had been involved in an argument at a barbeque with a man named Timothy Cole, that involved "face-to-face yelling." According to Bremner's offer of proof, the argument occurred after Pete "assaulted Mr. Cole['s] girlfriend repeatedly at the . . . barbeque, which almost led to physical blows had family members not broken the two men up."
The trial court excluded the evidence, ruling that the evidence was irrelevant. The court explained that evidence of Pete's prior altercation was "no more relevant," than if Bremner had been in such an altercation and the People were attempting to admit evidence of that altercation to prove Bremner's commission of the charged offense, conflating the standards for admissibility of evidence under section 1103, subdivision (a)(1) and section 1101, subdivision (b). Further, contrary to the majority's suggestion, the trial court did not rule that the evidence was inadmissible pursuant to section 352. In fact, neither the prosecutor nor defense counsel made any argument regarding admissibility of the evidence under section 352 at the hearing on the People's motion, and the court made no reference, either expressly or obliquely, to section 352 or to any factor relevant to a section 352 analysis, in making its ruling.
I would conclude that the trial court erred in determining that the evidence was irrelevant. Evidence of Pete's conduct at the barbeque constituted relevant evidence of the victim's aggressive character under section 1103, subdivision (a)(1). Specifically, the proffered evidence was relevant to demonstrate that when confronted, Pete became "fired up" and combative. A. The trial court did not exclude the evidence under section 352
The majority's primary holding is based on an incorrect premise, i.e., that the trial court excluded the evidence of Pete's behavior at the barbeque under section 352. In fact, in excluding the evidence, the trial court never mentioned section 352, nor did the court implicitly or explicitly weigh the probative value of the evidence against its potential for prejudice. Instead, at the hearings on the People's motion in limine, after discussing the relevance of the barbeque incident under section 1103, subdivision (a)(1), the trial court stated only that the evidence was irrelevant and would be excluded.
Despite this state of the record, the majority "finds" that the People argued in their motion in limine (though not at the hearing) that the evidence should be excluded under section 352, and asserts, "[T]he trial court appeared to have adopted the People's reference to the barbeque incident as 'irrelevant' under section 352. The court indicated that its tentative ruling was to exclude the evidence because it did not 'see how it is in any way relevant to the alleged assaults that take place later.' " In making this assertion, the majority fails to acknowledge that the thrust of the People's motion was that the evidence was irrelevant under section 1103 , subdivision (a)(1). In any event, regardless of what the People argued in their written motion, there is nothing in the record to support the conclusion that the trial court's ruling that the evidence was "absolutely irrelevant," was actually, sub silentio, a section 352 ruling, as the majority asserts.
In this regard, the majority's acknowledgement that "[t]ypically, a court does not exclude evidence as irrelevant under section 352" is telling. (Maj. opn. ante, at p. 17.)
In effect, the majority "affirms" an evidentiary ruling that the trial court never made, and proceeds to uphold this "ruling" as not an abuse of discretion, stating, "[W]e are satisfied that the trial court understood and fulfilled its responsibilities under section 352." (Maj. opn. ante, at p. 19.) While the majority is correct in its observation that in ruling on the admissibility of evidence under section 352, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so, surely there must be some indication in the record that the trial court's ruling was made pursuant to section 352 before a reviewing court may affirm on that basis. Here, there is no such indication and in fact, the record is to the contrary. During the first hearing on the motion in limine, the trial court gave its tentative ruling, stating that it did not see the proffered section 1103, subdivision (a)(1) evidence as being "in any way relevant." After hearing argument from counsel, the court stated, "The ruling will remain as indicated." At the second hearing on the evidence, Bremner's counsel stated that she understood the court to have ruled that the proffered evidence was "irrelevant," and Bremner's counsel argued that the evidence was "very relevant." In reaffirming its ruling of the previous day, the court stated, "The ruling will remain as indicated." The court also again referred to the concept of relevancy in stating that the court found the proffered evidence to be "no more relevant," than if the evidence pertained to the defendants. Under these circumstances, it is clear that the trial court's ruling cannot be affirmed on the ground that the trial court properly exercised its discretion under section 352 . (Compare with People v. Villatoro (2012) 54 Cal.4th 1152, 1168 [concluding that "the trial court implicitly conducted a section 352 analysis," where court referred to a " 'key case' " that required "a section 352 analysis"].) We may not "affirm" a section 352 ruling that the trial court never made.
Further, the majority's conclusion that the trial court did not err in its (nonexistent) section 352 ruling is based on a factor that the People did not even mention in their motion in limine and that the trial court never discussed. The majority engages in a lengthy discussion, speculating as to the number of witnesses each side would have had to call to establish what occurred at the barbeque and the amount of time it would have taken to do so. The majority states that "it appears that the barbeque incident would require the testimony of at least four to eight individuals," and asserts, "[I]t appears that the barbeque incident would require a mini-trial simply for the defense to try to establish what happened and that the incident is somehow admissible under section 1103, subdivision (a)(1)." Finally, the majority concludes, "We are satisfied that the court did not abuse its discretion in excluding the subject evidence because its probative value would have been substantially outweighed by the probability that its admission would necessitate an undue consumption of time." (Maj. opn. ante, at p. 22.) The problem with the majority's analysis is that the trial court never addressed these issues nor made any such ruling. Again, we may not affirm a ruling as a proper exercise of the trial court's discretion under section 352 when the record establishes that the trial court did not in fact exercise its discretion under that section. B. Evidence of Pete's aggressive character was relevant
Evidence that Pete became "fired up" and combative when verbally confronted by Cole at the barbeque was clearly relevant to Bremner's assertion of self-defense, since Bremner claimed that Pete reacted aggressively after Bremner verbally confronted him about his reckless driving.
Cole told a defense investigator that Pete "got defensive and fired up" after Cole "called him out" for his repeated groping of Cole's girlfriend at the barbeque. Evidence that Pete engaged in an "aggressive confrontation" with Cole that included "face-to-face yelling" and "almost came to physical blows," but was "broken up" by other people, constitutes evidence of Pete's character trait of aggression, in the form of a specific instance of conduct. (§ 1103 [making admissible "evidence of the character or a trait of character . . . in the form . . . evidence of specific instances of conduct . . . of the victim of the crime for which the defendant is being prosecuted"].) This evidence, if believed, could reasonably be relied upon by a jury in determining that Pete became combative when confronted.
The majority "see[s] no conduct by Pete like what Bremner claims to have occurred before he struck Pete," and concludes that evidence of Pete's conduct at the barbeque was therefore properly excluded as irrelevant. (Maj. opn. ante, at p. 24.) In reaching this conclusion, the majority characterizes the barbeque incident as Pete "pinch[ing] Cole's girlfriend's butt and later grabb[ing] her breast," and states, "We fail to see how such conduct would establish that Pete is the type of violent character who would get out of his car and attack a man after the man yelled at him." (Maj. opn. ante, at p. 24). With respect to Pete's confrontation with Cole at the barbeque, the majority distinguishes this confrontation from the confrontation with Bremner on the basis that the confrontation with Cole did not "turn[ ] physical," despite the proffer that "the argument almost came to physical blows" and that it likely would have if family members had not stepped in between Cole and Pete and separated them.
In concluding that Pete's conduct at the barbeque was not relevant to the altercation with Bremner, the majority overlooks obvious similarities between the two events. In both instances, Pete was verbally confronted by another man, in front of other people, and accused of behaving inappropriately. At the barbeque, Cole "called out" Pete about Pete's groping of Cole's girlfriend. In the incident involving Bremner, Bremner angrily accused Pete of driving recklessly near Bremner and his children. In both instances, when confronted, Pete became "fired up" and combative.
Pete's conduct at the barbeque illustrates his aggressive character and was clearly relevant to the jury's determination of whether Bremner was guilty of the charged offenses. Specifically, evidence concerning the manner in which Pete responded to the accusation of wrongdoing at the barbeque was relevant to the jury's determination of how Pete may have responded to Bremner's confronting him about his reckless driving, and thus, in determining whether Bremner's, or rather, Pete's account of the incident was true, and in particular, who the initial aggressor was. In his offer of proof, Bremner claimed that a few minutes after the first altercation ended, Pete stopped his truck, got out, and "started swinging wildly in attempts to punch Mr. Bremner." In contrast, according to Pete, a few minutes after this first altercation had ended, Pete drove by Bremner again and Bremner approached Pete and "blind-sided him with a punch to the face through the open window [of the truck]." Evidence pertaining to the incident at the barbeque was relevant to support Bremner's contention that Pete acted in conformity with his aggressive, combative character trait in attacking Bremner after Bremner verbally confronted him. (§ 1103 [making admissible evidence of the victim's character for purposes of proving "conduct of the victim in conformity with the character or trait of character"].) This evidence would have supported Bremner's account of the incident and was thus relevant in proving that Bremner acted in self-defense in response to Pete's aggressive actions. C. The trial court applied an incorrect standard in ruling on the relevance of the evidence, conflating admissibility under section 1103 , subdivision (a)(1) and section 1101 , subdivision (b)
This is a quotation from the People's motion in limine.
Specifically, such evidence was relevant in establishing that Pete acted in such a way that Bremner might reasonably fear "suffering bodily injury" or "being touched unlawfully," as was required in order for Bremner to have acted in self-defense.
Contrary to the majority's conclusion, the trial court's ruling that the proffered evidence was irrelevant clearly appears to have been based on the trial court's application of the "wrong legal standard." (People v. Hall (2016) 247 Cal.App.4th 1255, 1264 [trial court abuses its discretion where it " 'applies the wrong legal standard' "].) The trial court stated that the proffered evidence of the victim's aggressive character was "no more relevant," than if the proffered evidence pertained to the defendant. However, evidence of the victim's aggressive character is specifically made admissible pursuant to section 1103, subdivision (a) to prove the victim's propensity to act in conformity with such character, notwithstanding that such evidence would be inadmissible pursuant to section 1101, subdivision (a) to prove the defendant's propensity to so act. (See People v. Fuiava (2012) 53 Cal.4th 622, 695 [stating that section 1103, subdivision (a) contains an "exception[ ] to th[e] general rule," contained in section 1101, subdivision (a) prohibiting character evidence offered "to prove the defendant's conduct on a specified occasion" (italics added)]; see also People v. Gutierrez (2009) 45 Cal.4th 789, 827 ["Evidence Code section 1103, subdivision (a)(1) provides an exception to Evidence Code section 1101, subdivision (a) when a defendant offers evidence regarding the character or trait of a victim 'to prove conduct of the victim in conformity with the character or trait of character' "].)
The majority appears to make the same error that the trial court made in stating, "We would find Pete's conduct toward Cole's girlfriend at the barbeque incident relevant if Bremner claimed Pete pinched, grabbed, or otherwise sexually assaulted a woman, and Bremner struck Pete in response to such conduct." (Maj. opn. ante, at p. 24, italics added.) While such an analysis might be correct if this court were determining whether the evidence was admissible, for example, to prove identity under section 1101 , subdivision (b), (see People v. Armstrong (2016) 1 Cal.5th 432, 456-457 ["the admission of evidence of an uncharged crime under Evidence Code section 1101, subdivision (b), to prove identity requires the highest degree of similarity between the charged offense and the uncharged crime, and that 'the offenses must share common features that are so distinctive as to support an inference that the same person committed them' "]), we are aware of no case law, and the majority cites none, that requires such an exacting level of similarity in order for character evidence to be admissible under section 1103 , subdivision (a). D. The trial court's error in excluding the evidence requires reversal
I would conclude that the trial court's error in excluding evidence of Pete's conduct at the barbeque on the ground that the evidence was irrelevant requires reversal. The record indicates that the jury viewed this as a close case, even without the admission of the erroneously excluded evidence. The jury deliberated for nearly three full days, notwithstanding the relatively simple factual issue before it, and the fact that Bremner escaped the altercation relatively unscathed while Pete was seriously injured. The jury asked five questions during deliberations, including one concerning the elements of self-defense. The jury also asked for a read back of Cordoba's testimony, the only eyewitness having no prior relationship with either the defendants or the Blakelys. Manifestations in the record that a jury viewed a case as a close case, such as the reading back of a witness's testimony, lengthy deliberations, and the asking of questions, support a finding of prejudice. (See People v. Diaz (2014) 227 Cal.App.4th 362, 385.) In addition, the jury did not entirely adopt the People's view of the case. The jury acquitted Dickson entirely and found not true great bodily injury enhancements alleged with respect to the offenses charged against Bremner, despite the severity of Pete's injuries.
Further, the excluded evidence could have significantly bolstered the defense's case. It was undisputed that the fight occurred after Bremner and Robershaw accused Pete of speeding. Pete characterized the initial encounter as a "slight misunderstanding," during which Pete told Bremner and Robershaw, "You guys have a nice day." On cross-examination, Pete testified that, after his initial encounter with Bremner, he was not frustrated and that everything was "fine in [his] world." Bremner, in contrast, testified that after Bremner yelled at Pete to slow down, Pete had yelled, " [']Stay out of the F'ing road.['] Something to that extent." Bremner also testified that Pete said, " [']We'll see how tough you are after I get my bat or gat or come back[.]['] [S]omething to that extent."
When asked on direct examination whether he had "use[d] those words," Pete responded, "Yes." On cross-examination, when asked whether during examination he had stated during the evening in question, "Have a nice day," Pete responded, "I didn't say, 'Have a nice day,' " and stated that he did not recall his testimony earlier that day saying that he had said "[h]ave a nice day" during the initial encounter.
The evidence as to what occurred immediately before the fight was also sharply conflicting. Pete and Rachel's testimonies suggested that Bremner "blindsided" Pete with a punch while Pete was seated in his vehicle, with no prior discussion. In contrast, Bremner and Robershaw testified that the fight occurred after Rachel got out of Pete's vehicle and began spraying pepper spray on Bremner and Robershaw's group and Pete started swinging at Bremner. In short, the case turned largely on the jury's evaluation of these conflicting testimonies concerning how the fight had begun. Evidence that Pete had been involved a separate heated altercation that had nearly resulted in physical violence shortly before the incident would have supported Bremner and Robershaw's testimony.
In addition, the defense presented considerable evidence impeaching Pete's testimony concerning what had occurred at the barbeque. For example, while Pete testified that he had arrived at the barbeque at approximately noon, the parties stipulated that Pete told an investigator from the District Attorney's office that he had arrived at around 9:30 to 10:00 a.m. While Pete testified that he left the barbeque at around 3:30 p.m., a witness testified that he saw Pete at the barbeque sometime around 6:15 to 6:45 p.m. The defense also presented Rachel's testimony at the preliminary hearing that Pete and Rachel had left the barbeque "a few hours later" than 4:00 p.m. In addition, while Pete testified that he drank only two beers at the party, Pete admitted playing a drinking game—beer pong—while at the party. Perhaps most significantly, when Pete was asked at trial whether, when he left the barbeque, he felt like his Fourth of July had been "ruined," Pete testified, "No, not necessarily." However, the parties stipulated that Pete told an investigator from the District Attorney's office, that "in regards to leaving the [pool] party, 'Let's go have a happy July 4th because that pretty much ruined the whole entire day." Yet, without evidence that Pete had been involved in a heated altercation at the barbeque, the defense was unable to present any evidence as to what had ruined Pete's day.
Further, the prosecutor was able to effectively exploit this gap in the evidence during closing argument. For example, the prosecutor argued that Pete had been asked "countless questions regarding what time he got to an insignificant party earlier in the day," which the prosecutor characterized as "an immaterial collateral issue." The prosecutor also argued that "the parties stipulated that, in fact, [Pete] did say one thing vers[us] the other. Why? Because it doesn't matter."
It was entirely proper for the prosecutor to make such arguments. The point is not that the prosecutor acted improperly, but merely that his argument took advantage of the favorable, albeit erroneous, evidentiary ruling, enabling him to portray Pete in an arguably false light.
As noted above, the parties stipulated that Pete had told an investigator that, when he left the barbeque, his " 'whole entire day,' " had been " 'ruined.' " However, as discussed above, in light of the excluded evidence, the jury did not learn of the significance of this inconsistent statement.
More significantly, the prosecutor also was able to portray Bremner and Robershaw's account of the incident as "absurd," depicting Pete and Rachel in a false light, as a completely innocent middle aged couple, and arguing that it was unbelievable that "a 40 and a 50-year-old man and woman, husband and wife, [were] ready and willing to pepper spray down families." The prosecutor also argued that, in order to believe Bremner's and Robershaw's testimonies, the jury would have to believe that Bremner and Dickson were "the most unlucky people on earth to pick the Blakely[s] to do this." However, if the jury had learned that Pete had nearly come to blows with a third party earlier that evening after being confronted about groping that party's girlfriend, Bremner and Robershaw's accounts of the incident would have been more believable, and the prosecutor's closing argument likely would have been considerably more circumspect. In short, while the People presented evidence suggesting that Bremner committed an unprovoked attack on Pete, evidence supporting a finding that Pete had an aggressive character and specifically, that he became "fired up" and combative when confronted, and that he had been involved in a separate heated altercation that same evening, might have significantly altered the jury's assessment of the facts.
When trial court erroneously excludes evidence, a defendant must show on appeal that it is reasonably probable that he or she would have received a more favorable result if that evidence had been admitted. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125, citing People v. Watson (1956) 46 Cal.2d 818, 836.) In my view, the exclusion of the evidence resulted in prejudicial error under this standard. As noted, the record indicates that this was a close case. Even without the improperly excluded evidence, the jury deliberated for nearly three days before finding Bremner guilty of the charged offenses, asked for a readback of the only neutral eyewitness's testimony, and asked a question concerning the elements of self-defense. While the People presented considerable evidence of Bremner's guilt, including Pete and his wife's testimonies that Bremner committed an unprovoked assault and battery upon Pete, the defense presented substantial evidence that Pete was the aggressor. Under these circumstances, the trial court's erroneous exclusion of evidence pertaining to Pete's aggressive character may have had an impact on the outcome of the trial. Accordingly, I would reverse and remand for a new trial.
I concur in the majority's conclusion that the trial court did not err in excluding evidence of Pete's 1997 misdemeanor conviction for domestic violence. --------
AARON, J.