Opinion
F075234
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID BUI, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F16900404)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant David Bui was convicted of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)), after assaulting his girlfriend in his bedroom. He was sentenced to the second strike term of eight years. On appeal, defendant contends the trial court abused its discretion when it denied his motions to question the victim and impeach her credibility with evidence that she had prior convictions for driving under the influence and was on probation at the time of the charged offense; she had previously been charged in a domestic violence incident in which defendant was alleged to be the victim; and the charges against her in that prior domestic violence incident were dismissed. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Defendant and Sarah G. (hereinafter "Sarah") met for the first time in September or October 2014, while they were attending the same DUI class. They started dating and Sarah became defendant's girlfriend. Sarah was employed as a server and bartender at the "500 Club." Defendant had a landscaping business.
Both defendant and Sarah lived with their respective parents. They did not live together during their relationship. They primarily spent nights at the home where defendant lived with his parents. When Sarah went to defendant's home, she parked a few streets away and defendant would sneak her into his bedroom so his parents would not know they were together.
Sarah testified that alcohol was a factor in their relationship, and they regularly drank when they were together. They also argued because defendant thought that she was cheating on him. Defendant would look through the text messages on her cell phone to see if she was communicating with another man. Defendant would "flip out" if Sarah said hello to any male friend, and he cut her off from her friends, parents, and family.
Sarah testified defendant became verbally abusive toward her. Defendant called her demeaning names and said that "I should just drown myself in a bottle of liquor. That nobody would ever love me. That I should just kill myself. That I was just a bitch, a stupid piece of shit."
Sarah testified defendant became physically abusive toward her in July 2015. "It started off like once a week, and then towards the end [of their relationship] ... it was like three times a week." Defendant would put his knees on her shoulders so she could not fight back, and he would punch her in the face and ribs. "I had a black eye the entire month of December [2015] because of him," and she covered it with makeup.
Sarah never called the police about the physical abuse because she was scared of defendant. Defendant said he would either kill himself, or kill her, her family, or her pet. She still loved defendant despite the violence because he always apologized and promised to change. January 19 , 2016
Around 10:00 p.m. on January 19, 2016, Sarah parked her car near defendant's house, and he met her at that location. She asked defendant to return money that he took from her purse. They argued, and defendant slammed her against the car and slapped her face multiple times.
After the physical incident, Sarah got into defendant's vehicle, and he drove to his parents' house. She spent the night with him. They again argued and defendant punched her in the ribs. January 20 , 2016
On the evening of January 20, 2016, Sarah again parked her car near defendant's house, and he picked her up at that location. Around 6:00 p.m., they went to the Thai Fusion restaurant in Fresno. They were drinking and did not eat anything. Sarah thought she had three or four "Jameson[s]." Defendant was drinking "Crown" and had more drinks than she did.
Sarah testified they argued at the restaurant, and defendant accused her of cheating on him. Around 10:00 p.m., they left the restaurant, got into defendant's truck, and continued to argue about whether she was cheating on him. Defendant slammed her face into the dashboard.
Defendant drove Sarah back to her parked car, and they went their separate ways.
Sarah got into her car, drove to "The Shanty" bar, and had one drink. She thought she left the bar around 2:30 a.m. She drove to defendant's home and parked near it. She thought defendant would see her if he drove by.
Sarah admitted that she was regularly drinking and driving during this time. She admitted she drove her car after she had been drinking, but she did not feel drunk, but she had a buzz.
While Sarah waited by her car, defendant drove by and saw her. She got into his truck. He again accused her of cheating, they argued, and he again slammed her head into the dashboard. She did not call the police about this incident because she was scared and did not want a "worse beating."
Defendant drove back to his parents' house. Sarah spent the night with defendant because she had "no choice" and was afraid of him. She accused defendant of taking $900 from her purse, which was her salary and tips. They argued about the money and eventually went to sleep. The morning of January 21 , 2016
Defendant was convicted of corporal injury based on what happened in his bedroom on the morning of January 21, 2016.
Defendant assaults Sarah
Sarah testified she suddenly woke up around 7:00 a.m. because defendant was hitting her. Defendant was mad and again accused her of cheating on him because she went out with a friend the previous night after he left her at her car.
Sarah testified she was still in bed and defendant sat on her torso. His knees were on her chest and shoulders so she could not fight back. He punched her multiple times in the face, ribs, and back of her head. Sarah cried out, but believed defendant's parents had already left for work and were not home when he was beating her.
Sarah kept crying as defendant beat her. He finally stopped and got off her. Defendant lay next to her on the bed and calmed down for a period of time. She asked defendant for the money he took from her purse, and they argued about that.
Defendant yelled that she was a "stupid bitch," again accused her of cheating on him, and punched her face and ribs. Sarah believed defendant hit her face at least six times. She tried to hit or kick him back, but could not do so. Defendant was not drinking.
Defendant pushed Sarah off the bed, she rolled onto the floor, and he kicked her in the back with his bare feet. Defendant cursed her and yelled that he hated her.
Defendant produces the box cutter
Sarah got up from the floor, and defendant was still on the bed. Defendant said he was going to slit her throat, he would only cut halfway so she would bleed slowly, and it would be a painful death. She was scared and believed he was really going to slit her throat. He had never threatened her with a knife before. She told defendant to get a knife, because she was angry and thought he did not have one on in the bedroom.
Sarah testified that defendant reached for a box cutter that was on the dresser. She knew he used it for work but did not realize it was in the bedroom. Defendant looked at her and said, "[Y]ou are not worth it" and threw the box cutter in her direction.
Sarah already believed her life was in danger when he was beating her, and also believed she was in immediate danger when he grabbed the box cutter. She thought he was going to kill her.
Sarah tried to get to the bedroom door because she was scared. Defendant told her to lie down on the bed. She complied because defendant was stronger and faster than she was, and she knew he would come after her and hit her if she did not obey him.
Sarah testified she was five feet tall and weighed about 110 pounds, and defendant was five feet seven inches tall and weighed 190 pounds.
Sarah got on the bed. Defendant pushed her off and again kicked her in the back. Defendant got back on the bed. She crawled on the floor because she was in bad pain and was able to get out of the bedroom. The first 911 call
Sarah ran out of the house and screamed for help. A neighbor emerged from another house, and Sarah told her that boyfriend had hit her. The neighbor called 911 and handed the telephone to Sarah.
According to the transcript, the 911 call was made at 9:07 a.m. Sarah told the 911 operator that her boyfriend "just beat me up." In response to questions, Sarah identified defendant by name, said she did not need an ambulance, and he was still at the scene but he was trying to leave.
The 911 operator continued to ask questions but the call suddenly ended.
At trial, Sarah testified that as she spoke to the 911 operator, defendant came out of the house and walked up to her and the neighbor. Sarah spoke to defendant while she was still on the line with the 911 operator, and told him that she wanted him to return the $900 that he took from her purse.
Sarah testified defendant jumped into his truck, and she told the 911 operator that he was leaving. However, defendant got out of the truck and told Sarah that they should go inside. She agreed and handed the cell phone back to her neighbor without finishing the call with the 911 operator. The neighbor asked Sarah if she was okay, and she said yes. The neighbor left the area.
Sarah testified defendant acted calm in front of the neighbor. She ended the 911 call because defendant was "right there" and she was scared. The second 911 call
After the neighbor left, defendant produced his cell phone and told Sarah to call the police again, lie to them, and "tell them that [she] was drunk." Defendant acted aggressive, and he was angry that she had involved the neighbor and called the police.
According to the transcript, Sarah placed a second 911 call at 9:11 a.m. but would not give her name. She told the operator that she had "just called you guys, and I'm just drunk," and that she was "just making up that story." The operator asked for her location to make sure they knew what was going on. Sarah apparently asked defendant for the address but told the operator: "I think that you should send the cops out to be honest."
At trial, Sarah testified she made the second 911 call because defendant told her to do it, she was scared, and she did not want him to get in trouble. Defendant coached her about what to say. She lied when she told the 911 operator that she was drunk because defendant told her to say it. The police arrive
Fresno Police Officers Cox and McQuay responded to the dispatch and arrived at the home of defendant's parents. Sarah and defendant were standing in front of the house and were talking normally.
Officer Cox immediately noticed that Sarah had a black eye and a cut under her nose. He asked her how she got the black eye. Defendant was present when he asked the question. Cox testified that Sarah was very timid and seemed afraid. Sarah looked at defendant, and then turned away. Her "shoulders shrunk and her bottom lip began to quiver and she said she scratched herself."
Sarah told Officer Cox that defendant stole $900 from her purse the previous night. She said, "[A]ll I want is my [$900] and I'll leave." Defendant was "within earshot" when she made this statement. Defendant denied taking the money.
Officer Cox was concerned that Sarah was afraid to talk in front of defendant, and asked Officer McQuay to escort defendant to another location.
Officer Cox testified that neither defendant nor Sarah appeared to be under the influence of alcohol.
After defendant stepped away, Sarah told Officer Cox that physical abuse had been ongoing throughout their relationship. Cox testified that she gave a detailed statement about what happened that morning, and she was crying and emotional. Sarah told Cox that she had been asleep when defendant started to punch and slap her, and accused her of sleeping with other men; defendant pushed her off the bed; and defendant kicked her when she was on the floor. She showed some of her injuries to Cox, who took photographs of the visible parts of her body.
Sarah testified that when the officers arrived, she was starting to regret that she had called the police. She lied and told the officers that she had been drinking all morning and was really drunk. Defendant was present when she made this statement, but he was escorted away from her by the second officer. Sarah testified that Officer Cox asked her whether she wanted to stick with that story and how she got a black eye. She replied that she tripped and fell. Cox told Sarah that he could not help her once he left. Sarah believed defendant would kill her, and decided to tell the officers what happened that morning because they were "the only chance I had to stay alive. I wasn't going to make it out of the relationship alive."
As Sarah spoke to Officer Cox, defendant's father arrived at the house. Sarah testified that defendant's father stood behind Cox, looked at her, shook his head, and "gestured no, not to do anything." She felt uncomfortable about his gestures.
Officer Cox was aware that defendant's father was present but did not believe he caused any kind of distraction. However, Cox told defendant's father to move away from Sarah's location. Cox heard defendant ask his father for the money that Sarah claimed defendant took from her.
Officer Cox testified he concluded defendant was the aggressor based on Sarah's statements, the nature of her injuries, and defendant's claim about what happened. Defendant was arrested and placed in the patrol car. Defendant leaned out of the patrol car's the window and yelled at Sarah that she was lying.
Officer Cox left Sarah and went to the patrol car to speak to Officer McQuay. Sarah testified that once Cox left her alone, defendant's father approached and told her to drop it and not to press charges. She replied that defendant had been "beating me up and you know it and to leave me alone."
Officer Cox testified he noticed scratches on defendant's face and took photographs of his injuries. Sarah's belated report about the box cutter
Sarah testified she did not tell the 911 operator or Officer Cox that defendant threatened to stab her and threw the box cutter at her.
Detective Derek Jacobo of the domestic violence unit was assigned to investigate the case and interviewed Sarah. On January 25, 2016, after the initial interview, Detective Jacobo received a telephone call from Sarah. Sarah reported that during the bedroom incident, defendant threatened to slice her neck so she could die slowly. She said she told him to get a knife, and she tried to leave. Defendant got a box cutter and threw it down. He also threatened to shoot up her parents' home. Sarah told Jacobo that she failed to initially report these incidents because there was so much going on at the time. Sarah's injuries
At trial, Sarah testified that as a result of defendant's assault in the bedroom, she suffered a black eye, a bruised lip, and bruises and scratches on her forehead, arms, shoulder, and chest. She had a bruise on her back that occurred when defendant kicked her on the floor.
Sarah had an injury on her nose from the incident where defendant slammed her head into the dashboard the previous night. There was another bruise on her back that occurred when defendant slammed her against her car, two days earlier.
Sarah conceded that defendant suffered bruises on his forehead and arm, but she did not know how he got them. On cross-examination, she admitted it was possible that she caused the injuries because she tried to fight back when he assaulted her on the bed. Defendant's prior assault of a former girlfriend
A.E., defendant's former girlfriend, testified that she dated defendant from approximately 2011 to 2013. After they had dated a few months, defendant began to verbally abuse her. He was toxic and very demeaning to her. Defendant drank heavily during their relationship.
The court overruled defendant's objections and admitted A.E.'s testimony about defendant's prior acts of domestic violence pursuant to Evidence Code section 1109.
A.E. testified defendant also physically abused her. He often shoved her into a wall, pulled her hair, and hit the top of her head. He would spit on her face and choke her. He hit her with closed fists and inflicted visible injuries. She lied to her family and friends about what happened. A.E. testified she had to watch what she said to defendant. He isolated her from her family and friends, and would check her phone because he did not want her to contact other people.
A.E. testified that on August 31, 2013, she went to defendant's house. They had argued the previous day because defendant was angry that she talked to some guy. When she got to his house, defendant was yelling at her. Defendant grabbed A.E.'s hair and pulled her into the house. Defendant had been wearing flip-flop sandals. He took them off and kicked A.E.'s body with his bare feet. He punched her head and face with a closed fist until she could no longer move and had trouble breathing. A.E. was crying for him to stop but he kept hitting her. He kicked and stomped her in the head, stomach, and back "like a dog." Her face became bloody, but he continued to hit her. A.E. believed he was going to kill her.
A.E. testified defendant finally stopped, took a shower, and then watched television in another room. A.E. was on the floor and could not move. His brother's girlfriend arrived at the house, discovered A.E. lying on the floor, and asked defendant what he had done. Defendant said he did not do anything and claimed A.E. was exaggerating. Defendant returned to the room where A.E. was lying on the floor. He picked her up, slammed her on the floor, and left. His brother's girlfriend called the police.
It was stipulated that as a result of this prior incident, defendant was convicted in December 2013 of felony battery causing serious bodily injury against A.E.
DEFENDANT'S TESTIMONY
Defendant testified he pleaded guilty to the charge regarding A.E. He admitted wrongdoing, he was punished, and he was remorseful about the incident. Defendant admitted he had been drinking before that incident occurred. Defendant also admitted that when the police responded to the scene, he lied and claimed he did not cause any of A.E.'s injuries.
Defendant testified that he met Sarah in a DUI program, "where we'd just sit in a circle and kind of just start [talking] about our alcohol use and our abuse and what led to our DUI." They started dating and went out drinking together. Defendant told her about the prior incident with A.E. and his prior conviction.
Defendant testified their dates usually involved alcohol, they drank a lot, and his family did not approve of her. He would sneak her into his bedroom at home so his parents would not know she was there.
Defendant testified he was a social drinker, and Sarah tried to keep up with him. He did not consider himself an alcoholic. He used to be very jealous, but defendant and Sarah were mutually possessive of each other. They were verbally abusive toward each other over accusations of cheating. Defendant testified Sarah became physically abusive toward him when she was drinking.
Defendant denied Sarah's account of his conduct in the days and hours before he was arrested in this case. Defendant testified that he did not slam her head into the dashboard; he did not slap her, straddle her body when they were in bed, beat her in his bedroom, repeatedly punch or kick her, inflict a black eye, or threaten her with a box cutter. He did not take any money from her purse.
Defendant testified that on the evening of January 20, 2016, Sarah parked her car at a separate location so their families would not see them. Defendant picked her up in his truck and they went to Famous Dave's for beers and an appetizer. They next went to Thai Fusion and had several shots and mixed drinks.
Defendant testified that he had a higher tolerance for alcohol than Sarah. After a few drinks, she became aggressive with him and accused him of cheating. Defendant tried to cut off her drinks. Sarah got mad, knocked over her chair, and went into the restroom. Defendant decided he was going to leave. He got into his truck and started to drive out of the parking lot without her.
Sarah ran after him, climbed into the truck bed, and fell into it. She shouted not to leave her. Defendant told her to get out of the truck. She grabbed items from the truck bed and threw them into the parking lot. Defendant stopped the truck, and she got into the passenger compartment. She was intoxicated and accused him of cheating on her.
Defendant admitted he was drinking and driving that night, even though he was still attending a DUI class. He did not call the police about Sarah's conduct because he did not want to get into trouble for drinking and driving.
Defendant testified he drove back to where Sarah had parked her car. He did not want to be with her anymore; he dropped her off and drove away. Defendant met some friends and went to two other bars. He had more beers and mixed drinks.
Around 2:00 a.m., defendant drove home and saw Sarah's car near his house. She drove her car into defendant's truck to stop him. Defendant yelled at her for hitting his truck. She appeared intoxicated. Defendant drove away and did not want her to follow him.
Defendant testified he drove around the neighborhood and hoped she would leave. He finally drove home and did not see her car. He went into the house and Sarah suddenly appeared. She ran into the house with him and went into his bedroom. Defendant testified they were both drunk and went to bed. The bedroom incident
On the morning of January 21, 2016, defendant woke up around 7:00 a.m. to go to work. He told Sarah that she had to leave. Sarah accused defendant of cheating on her. Defendant testified that she got on top of him when he was in bed. She straddled his body and repeatedly punched him in the face with a closed fist. Defendant testified Sarah inflicted bruises on his arm and forehead. Defendant grabbed her arms and threw her off him. She hit the side of the bed frame and landed on the floor.
Defendant again told Sarah to leave; she refused, and they argued. Sarah told defendant she left her purse and money in the truck when they left Thai Fusion. Defendant said he would get it for her and went to his truck. She ran out of the house screaming that defendant beat her up, and asked a neighbor for help. Defendant told Sarah that she was going to get into trouble for calling the police "for something I didn't do." The 911 calls
Defendant saw Sarah on the telephone, and he could hear what she was saying to the 911 operator. Defendant decided to leave because he did not want to get any trouble. However, he turned around and went back. He again told Sarah that she was going to get into trouble, and she needed to call back and tell the truth to the police.
Defendant testified that Sarah used his cell phone to make the second call to the police to tell them the truth. Defendant denied that he told her what to say. Defendant's statements to Officer Cox
Defendant testified he told Officer Cox that Sarah was angry because he wanted to break up with her, and she punched him in the face and arm. Defendant did not tell Cox that Sarah had straddled his body on the bed, or that he had defended himself by grabbing her arms and throwing her off the bed. He also failed to mention the incident at Thai Fusion, when she jumped into his truck bed as he tried to drive away, or that she hit his truck with her own car when he was driving home the previous night.
Defendant testified that Officer Cox told him that Sarah just wanted her money back, and she would go away. Sarah claimed defendant had taken $900 from her. Defendant replied that he did not have her money and felt like he was being extorted and had to buy his way out of the situation. Defendant's father arrived, and defendant asked him for money so she would leave. His father said he did not have it. About a minute later, Cox told defendant he was being arrested for domestic violence. Defendant admitted he yelled at Sarah when he was in the police car because she was lying about what happened.
Defendant did not know how Sarah got a black eye or the other injuries on her body; he did not see any injuries on her that day. However, he admitted that he told the police that Sarah had a black eye because she was crying that morning and rubbed her eye too much. Defendant also testified that she might have suffered some of her injuries when she fell in his truck bed, or when he grabbed her arms and pushed her off the bed.
Defendant testified he had been abused as a child by his father.
REBUTTAL
Bob Meade, a licensed marriage and family therapist and domestic violence expert, testified that abusers generally learn their abusive behavior from their primary support system and caregivers. Such people often try to control all aspects of victims' lives, including where they go, who they see, and who they talk to. With respect to physical violence, 85 percent of abusers are men. There was about an even percentage of men and women who engage in verbal abuse. Sometimes alcohol may play a part in the abuse.
Meade had observed many instances where victims recanted or changed their stories, especially if there had been resumed communication between the abuser and the victim. The charges
Defendant was charged with count 1, corporal injury resulting in a traumatic condition to Sarah (§ 273.5, subd. (a)), and count 2, criminal threats against Sarah (§ 422).
It was further alleged that defendant had one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and one prior prison term enhancement (§ 667.5, subd. (a)). Issues on appeal
Defendant's issues on appeal are based on the court's rulings on defense motions to introduce evidence to impeach Sarah's credibility and her character. Defendant was initially represented by retained counsel, who made a series of motions; the court initially ruled on some of these motions. Defendant's trial was ultimately continued because he discharged appointed counsel and retained an attorney. His new attorney filed a formal motion in limine to introduce certain evidence against Sarah. When defendant's trial finally began, the court conducted lengthy hearings on defendant's motions and excluded most of the proposed evidence.
In order to address defendant's appellate issues, we address the defense evidentiary motions and the court's rulings in the sequential order in which they occurred.
DEFENDANT'S FIRST PRETRIAL MOTIONS
Sarah's prior DUI/probation status
Defendant's trial was initially set for September 2016, when he was represented by appointed counsel. At that time, Judge Harrell held hearings on the parties' evidentiary motions, particularly about whether defendant's prior acts of domestic violence against A.E. were admissible. The court granted the prosecution's motion to introduce A.E.'s testimony pursuant to Evidence Code section 1109.
As the pretrial hearing continued, defense counsel asked the court for clarification about whether Sarah could be impeached with the fact that she was on misdemeanor probation for a prior DUI conviction at the time of the charged offenses. Counsel argued such evidence was relevant because Sarah continued to drink and drive at the time of the charges in this case in violation of her misdemeanor probation, and she was impeached at the preliminary hearing with this evidence. The court's initial ruling on Sarah's prior DUI convictions
The court asked whether there was any evidence about Sarah's blood-alcohol level at the time of the charged offenses in this case. Counsel said no. The court was not inclined to allow evidence of her prior DUIs without proof of her actual blood-alcohol level to show she clearly violated her probation conditions at the time of the charged offenses.
"This Court would not be inclined to allow that testimony to - that evidence to be used. Because it would allow the jurors - without there being a finding of the actual blood alcohol level and showing her to be a - clearly in violation of the witness's probation would allow the jurors to speculate as to the level of that individual's blood alcohol level. And that would not be appropriate. So I would preclude that.Domestic violence incident between defendant and Sarah
The prosecutor stated that she was still trying to obtain police reports about a possible domestic violence incident between defendant and Sarah that occurred in October 2015. The prosecutor stated that defendant was initially arrested and never charged, and then Sarah was charged. The prosecutor believed the defense intended to introduce evidence about this prior incident between defendant and Sarah, but argued the underlying facts were very convoluted, it was not relevant, and it would confuse the jury.
Defense counsel stated that one police report about the October 2015 incident found defendant was the aggressor, while another report said Sarah was the aggressor. Counsel moved to exclude references to the October 2015 incident because the evidence was prejudicial toward defendant. However, defense counsel intended to introduce rebuttal evidence on this topic if Sarah testified at trial and denied she had ever been aggressive toward defendant.
The prosecutor said she did not intend to introduce evidence about the October 2015 incident between defendant and Sarah, but argued the defense would open the door to additional evidence about defendant's conduct if defense counsel asked Sarah about being an aggressor. The court's initial ruling about the October 2015 domestic violence incident
The court decided to defer ruling on the admissibility of the October 2015 domestic violence incident between defendant and Sarah, because the parties were not sure about the nature of the evidence. The court noted, however, that such evidence would open "a huge can of worms and could be bad" for both defendant and the prosecution. Continuance
The court ultimately continued the trial for scheduling reasons after defendant discharged appointed counsel and substituted retained counsel. The trial was reset for January 2017.
DEFENDANT'S MOTION IN LIMINE
On January 5, 2017, defendant's new retained counsel filed a pretrial motion in limine prior to the commencement of the continued trial. Defendant moved to introduce evidence to impeach Sarah's credibility and character for truthfulness, to show that she had a motive to implicate defendant as the aggressor, and to argue her capacity to perceive and recollect was greatly diminished. Prior criminal history
Defense counsel also moved to exclude defendant's prior conviction arising from the domestic violence incident in 2013 against A.E., his former girlfriend, and that he was on parole at the time of the incident in this case.
The court held defendant's prior acts of domestic violence against A.E. were admissible under Evidence Code section 1109, and the evidence was not unduly prejudicial. The court excluded evidence about defendant's parole status.
Defendant's motion in limine sought to introduce evidence and question Sarah about four specific cases in her criminal history.
(1) A prior DUI conviction in 2012 (case Nos. M12913990) where her BAC was 0.14 percent.
(2) Another DUI conviction in 2012 (case No. M12927076), where her BAC was 0.24 percent. According to the motion, both prior DUIs resulted in accidents; Sarah was admonished about her use of alcohol and she could not drive without a valid license; Sarah was still on DUI probation for both cases at the time of the instant case; and the evidence would show that she was drinking and driving in violation of probation.
(3) A case where Sarah was charged with domestic battery and disorderly conduct in 2015 (case No. M15912235), but apparently not involving defendant. Defendant's motion stated that alcohol was "a root cause" of the incident, and Sarah was placed on two years of probation.
(4) The domestic violence case between Sarah and defendant, where Sarah was charged with committing corporal injury against defendant (case No. M15933236); the offense allegedly occurred on October 16, 2015. Defendant's motion stated that one officer's report said that Sarah was the aggressor and there were witnesses to the incident. The case was dismissed in the interests of justice on January 25, 2016, just after the charges were filed against defendant in this case.
Defendant argued evidence about all four prior criminal matters, taken together, was relevant to show that Sarah had issues with alcohol abuse, unlawful force, and a propensity to disobey court orders and commit new violations of law. In addition, defendant argued the evidence that Sarah was drinking and driving on the night of the alleged offense in this case would show "her total disregard for the safety of others and to obey court orders not to drink and drive or consume alcohol."
Defendant complained the People had not yet provided complete police reports about these prior incidents. Dismissal of charges
Defendant's motion in limine also sought to "further inquire" about the October 2015 domestic violence incident, and why the pending charges against Sarah for inflicting corporal injury on defendant were dismissed in January 2016, just after the charges were filed against defendant in this case. Sarah's alcohol use
As a separate matter, defendant's motion sought to "inquire" about Gazaway's "apparent[] alcohol abuse problem," based on evidence that she was drunk on the night of the alleged incident and told the 911 operator that she was drunk. Defendant argued Sarah's "drinking behavior is pivotal to her ability to observe and tell the truth."
HEARING ON DEFENSE MOTION IN LIMINE
On January 5, 2017, Judge Harrell convened defendant's trial and began with defendant's motion in limine. The court acknowledged it had previously addressed some of the parties' evidentiary motions prior to the continuance, but it would hear defense counsel's arguments raised in the motion in limine and was willing to reconsider its prior rulings. Defense counsel's arguments
Defense counsel acknowledged that at the earlier pretrial hearing, the court had excluded evidence about Sarah's two prior DUI convictions. Counsel asked the court to reconsider based on additional facts regarding the prior DUI convictions, particularly Sarah's blood-alcohol levels, her probationary status, and violation of probation by drinking and driving at the time of the incident in this case. Counsel added that Sarah's testimony at the preliminary hearing was impeached with evidence about her prior DUIs and probationary status.
Defense counsel also asked the court to admit evidence about Sarah's prior disorderly conduct case identified in the motion in limine. Defense counsel said the victim in that case was Sarah's sister. Defense counsel did not have the police reports about the incident with her sister and acknowledged the case was "sticky," and he wanted to reserve the issue until he had all the facts about it.
Defense counsel stated that in a separate case, Sarah was charged with committing domestic violence against defendant, a case was filed against her, and it was dismissed. Counsel acknowledged that one of the police reports said that defendant was the aggressor and the other report said that Sarah was the aggressor, but there were also witnesses to the incident. Counsel argued the evidence was relevant to show Sarah was drinking and acted aggressively toward defendant. Counsel also wanted to ask Sarah about why the domestic violence charge that she committed against defendant was dismissed.
Defense counsel argued that Sarah's criminal history showed that she was not credible, she repeatedly violated court orders, she had a motive to lie and blame defendant, and her continued drinking undermined her capacity to perceive and recollect the facts in this case, particularly since she told the 911 operator that she was drunk. Counsel acknowledged there was evidence that defendant forced Sarah to make the second 911 call and say she was drunk, but counsel argued her prior alcohol use was still relevant to impeach her.
Defense counsel further stated that he wanted to question Sarah about her "alcohol abuse, whether she has an alcohol addiction," and thought the issue was pretty clear.
Defense counsel argued all the evidence would clearly show Sarah became violent when she drank, and she had "a character trait that is directly applicable to this case and I should be allowed to introduce witnesses that would corroborate my theory as well as question [Sarah] about these issues." The prosecutor's response
The prosecutor stated that the People were not going to hide the fact that both parties had alcohol problems. The prosecutor was willing to stipulate that defendant and Sarah were alcoholics and abused alcohol because it was relevant to the case.
The prosecutor argued that Sarah's prior DUI convictions in 2012 were not relevant, but if the defense introduced evidence about her convictions, then the People would move to introduce evidence that defendant had prior DUI convictions in 2010 and 2012.
The prosecutor stated neither party had the facts about the 2015 incident that was allegedly between Sarah and her sister. Sarah was placed on probation for disorderly conduct in 2015, but the file had been destroyed.
The prosecutor also stated that there had some sort of a domestic violence incident between defendant and Sarah in October 2015, but two officers reached contrary conclusions about the situation: one officer concluded defendant was the aggressor and the other officer placed responsibility on Sarah. The prosecutor said the two witnesses to the domestic violence incident were in Canada and apparently unavailable to appear. The prosecutor acknowledged it was relevant to address the domestic violence problems between defendant and Sarah, but it was not relevant to ask Sarah if she knew why the prior case that was filed against her had been dropped.
The prosecutor argued that defense counsel's proposed evidence about the prior incidents would result in multiple mini-trials and remove the focus from what happened at defendant's house. Further argument
After a recess, the prosecutor and defense counsel advised the court that they had more information about Sarah's misdemeanor conviction in 2015, based on an incident that did not involve defendant. The parties stated that the incident occurred in a bar in December 2014. Sarah was involved in an altercation where alcohol was involved. The victims were defendant's sister and another person; other people jumped into the fight, and bouncers had to break it up. Defendant's sister did not want to press charges against Sarah, but the other person did. Sarah was cited for resisting, battery, and disorderly conduct. She pleaded to misdemeanor disorderly conduct in 2015.
When the parties initially argued the evidentiary motions, they believed the victim in the 2015 incident was Sarah's sister. Defense counsel later stated that defendant's sister was the victim. --------
Defense counsel stated that during the bar incident, Sarah was drunk and slammed defendant's sister's head into concrete. Counsel argued the bar incident was relevant to show Sarah's propensity for violence, to be the aggressor when she was drinking and harm a loved one or someone close to her. Counsel agreed the misdemeanor conviction itself was not admissible but sought to ask Sarah about the bar incident and/or call witnesses about it.
The prosecutor stated the bar incident was not admissible because it involved a completely different type of family relationship with defendant's sister, and defendant was not present or involved. The prosecutor again said the two witnesses to the bar incident were in Canada and unavailable.
The prosecutor further argued that it was not relevant to ask Sarah why the charges in the 2015 domestic violence incident with defendant were dropped. There were conflicting reports from the investigating officers about who was the aggressor, the case was initially filed, and then it was dismissed because there were problems to prove the case. There was no need to "rehash" an incident and conduct a separate trial about it "where officers weren't able to determine who was an aggressor and who was a victim." The court's exclusion of the prior domestic violence case and dismissal of charges against Sarah
The court ruled on defendant's motions and first addressed the defense motion to question Sarah and introduce evidence about the October 2015 domestic violence incident between defendant and Sarah, where charges were filed against Sarah and later dismissed shortly after the charges in the instant case were filed against defendant.
The court said it understood the potential significance of the evidence, but believed the reasons for the dismissal were not relevant questions for Sarah.
"When a case is dismissed most defendants are not going to sit around and say, 'Well, why was it dismissed,' and have discussions with the prosecuting attorney or the defense attorney as to why. When it's dismissed they're getting the heck out of the courtroom at that point."
The court explained:
"THE COURT: I see nothing in here in the [defense] motion that suggests that the issue of the October 16th, 2015 incident concerned anything other than inquiring as to why it was dropped four days after [defendant] was charged in this case. And, again, I think that's not an appropriate question to ask the alleged victim or in this case viewing her as the former defendant in a criminal case. That's usually not their - a defendant's decision to make and if it's made by others, which it must be, it's not something that's usually explained to a defendant. So - and as to the propensity argument, again, if we're calling in other witnesses [about the October 2015 incident] and at this point it sounds like there would be two others, I have an issue with that when we're talking about a 2015 incident when the conduct that's at trial -one trial here allegedly took place in 2016. [¶] ... So at this point I am not going to allow any evidence concerning the October 16, 2015 incident. The court finds that to go into that issue as to why the case was dismissed it would be completely inappropriate. There is no suggestion that - if there is, please let me know, but there's no suggestion that somehow there was some deal struck between the District Attorney's Office, whoever was there that day, and this witness to say, no, we need you to testify against [defendant]. If there is something like that -
"[DEFENSE COUNSEL]: No. And I have no reason to believe that's actually what happened.
"THE COURT: Right. But that - I believe you understand what the implication would be and that would be inappropriate information in the absence of evidence, there being some type of collusion. So I'm not going to - I'm not going to allow that. That would be pure speculation and it's not appropriate." (Italics added.)
The court thus completely excluded evidence about the October 2015 domestic violence incident between defendant and Sarah.
At trial, Sarah and defendant testified to vastly different versions of what happened in defendant's bedroom and in the hours leading to that incident. However, both Sarah and defendant testified about domestic violence disputes in their relationship in the days leading to the charged offenses.
At the close of evidence, the court instructed the jury about defendant's claim of self-defense. "If you find that Sarah ... threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." The court's ruling on Sarah's prior DUI cases
The court next addressed the defense motion to introduce evidence about Sarah's prior DUI cases in 2012.
"THE COURT: As to the DUIs from 2012, the only - I don't see the significance of the convictions themselves other than to show that there was an order precluding drinking and driving. And if there's evidence showing that despite that order there was drinking and driving, I believe that could be used to impeach an individual showing that they're not following orders. But that doesn't mean there need to be a discussion of the blood alcohol content in either one of these convictions. And so, I'm precluding any discussion of the blood alcohol content or even frankly that there was a conviction. It would be sufficient for the purpose for which you intend to offer this evidence that there was an order that there be no drinking, you need not drive a motor vehicle with a measurable amount of alcohol."
The prosecutor was concerned that evidence of Sarah's uncharged acts of drinking and driving in the hours before defendant's arrest in this case would be irrelevant to the domestic violence charges.
"THE COURT: It's not necessarily going to whether there was or was not an incident of domestic violence, but it may go to the witness' credibility in general, which ties into the underlying incident. But it is an issue that can point to whether a person is credible when here and she testified. If a person's willing to disobey court orders, most people would find that to be problematic.
"[THE PROSECUTOR]: Okay. And then does that then open the door if the defendant testifies that I can question him about going into bars and being in places where alcohol is the substantial purpose of the business?
"THE COURT: Would that be a violation of a court order that was applicable to [defendant]?
"[THE PROSECUTOR]: Yes.
"[DEFENSE COUNSEL]: Yes.
"THE COURT: Then, yes, you would be able to go into that. But I want to caution counsel, the point of this trial is what allegedly took place in January of 2016. Obviously, based upon the arguments of counsel earlier there's a lot of collateral matters that ... could be gone into by counsel that frankly would distract from the inquiry the jurors must make in this case. So I am not going to allow counsel to draw this out unnecessarily bringing in things that are not directly related to the question presented to the jurors, and this is what happened, if anything, on January [21, 2016]. [¶] So while, yes, you could go into that [addressing defense counsel, you could go into the counterpart [addressing the prosecutor]. The question you should be asking is whether you should. [¶] So that addresses the driving under the influence convictions. There should be no mention that they were convictions because those are not crimes of moral turpitude, but it's simply to point out that there was an order and it may have been violated.
The court later explained that it did "not believe there should be any mention of probation [about Sarah], just as there will be no mention of parole [about defendant] during the course of the trial."
Defense counsel asked what, if anything could be discussed regarding Sarah's drinking and driving while on probation at the time of the charged offenses. The prosecutor again stated that defendant was on parole and also prohibited from drinking and driving, and defense questions to Sarah could open the door to similar questions to defendant on this topic.
The court acknowledged the similar prohibitions and that the defense was trying to attack Sarah's credibility. The court held that defendant could be asked about his own drinking and driving under such circumstances, but excluded any reference to his parole status.
The court held the parties also could address that defendant and Sarah met at a DUI class. "I think what [defense counsel] is trying to get at is that this is going to ... the alleged victim's credibility. But I assume if the defendant testifies, he would be subject to the same ...." Defense counsel agreed that that would be the case. The court clarified: "I would allow it."
As set forth above, both Sarah and defendant testified at trial that they met while attending a DUI class; what the DUI class was like; they drank during their dating relationship; and they were drinking and driving in the hours before the charged offenses. The court defers ruling about the 2014 incident at the bar
The court next addressed the defense motion to introduce evidence that Sarah was convicted of misdemeanor disorderly conduct after an incident at a bar. During arguments on the motion, the attorneys were not sure about what happened, Sarah's exact conduct, and whether the victim was the sister of defendant or Sarah.
The court was concerned that the parties were still uncertain about the surrounding facts. It decided to defer ruling on this evidence until the parties had a "firmer grip" on what happened. The court stated that once the parties clarified what happened at the bar, it would give defense counsel the opportunity to argue the evidence was admissible against Sarah. The court adjourned for the day. The parties' stipulation about the incident at the 500 Club
When the court reconvened, the hearing began with the parties advising the court that they had jointly agreed to exclude any evidence about an incident at the "500 Club" bar.
What follows is the entirety of the discussion about this incident.
"[DEFENSE COUNSEL]: Yesterday I received a chain of e-mails and calls from the District Attorney in regards to an incident that ... we didn't have reports on yet, related to the incident at the 500 Club. And without going into details on the record, I will just acknowledge that I received it and there was some issues for both sides about what we should do with it at this point. And we had both agreed that in the interest of not having mini trials, that we are both agreeing to not pursue anything related to that report in trial. I just want to lay that record so it's clear. The evidence that would be presented from that report I think would be detrimental to both sides, potentially, and we have agreed at this point to mutually exclude it.
"[THE PROSECUTOR]: That is correct, Your Honor. I actually requested an investigation in regards to this information back in October. It wasn't until yesterday that I received it. We have had numerous changes of investigators in my unit. Anyway, it was late, I was late receiving it, but I felt that it contained exculpatory information and I had to turn it over. I immediately provided it to [defense counsel] and we talked about it and then we thought about it overnight and we spoke this morning and we both agreed to not use any of that, that information, because it would just complicate things. So we just wanted to make a record so if there is an appeal issue later.
"[DEFENSE COUNSEL]: Yeah, on the appeal issue, I would just acknowledge for the record that it is a defense strategy not to pursue any further in limine on that report because I think it's potentially detrimental to my client [defendant]. While at the same time acknowledging that it does go to the character of the alleged victim in this case [Sarah], but I think that we have the potential for confusing the jurors, wasting time and convoluting the issues. So I though in a defense strategy not to pursue it.
"[THE PROSECUTOR]: It also contains information that could be detrimental to the defendant as well. So we can just leave it at that.
"THE COURT: Okay. So I guess there will be no mention of the 500 Club incident, whenever that may have taken place and whomever may have been involved; is that accurate?
"[DEFENSE COUNSEL]: I will - my client [defendant] and any potential witness, I will direct them not to mention that. Of course if things are opened up, we will have to address it then. But I would make the same request at that time.
"[THE PROSECUTOR]: That is my plan."
There was no further discussion about the "500 Club" incident prior to or during trial. The parties did not ask the court to issue any further rulings about defendant's motion in limine, including about Sarah's disorderly conduct conviction involving someone's sister.
CONVICTION AND SENTENCE
After a jury trial, defendant was convicted as charged of count 1, corporal injury resulting in a traumatic condition to Sarah. He was found not guilty of count 2, criminal threats against Sarah. Defendant admitted the prior conviction allegations.
The court sentenced defendant to upper term of four years, doubled to eight years as the second strike term. The court ordered the prior prison term enhancement stricken. The court also issued a criminal protective order pursuant to section 273.5, subdivision (j), prohibiting defendant from having any contact with Sarah or coming within 100 yards of her.
DISCUSSION
Defendant contends the court abused its discretion when it denied his pretrial motions to introduce evidence and cross-examine Sarah about (1) her probationary status at the time of the charged offense, and that she violated probation by drinking and driving; (2) the October 2015 incident between defendant and Sarah, where she was charged with domestic violence; and (3) dismissal of the prior domestic violence case filed against Sarah, shortly after the charges in this case were filed against defendant.
Defendant argues this evidence was relevant to impeach Sarah's credibility and show her propensity for violence and aggressiveness, to support defendant's trial testimony that she attacked him and he was forced to defend himself.
Defendant further contends that he should have been allowed to question Sarah about why the domestic violence case against her was dismissed shortly after the instant charges were filed against defendant. Defendant states the reasons for the dismissal of that prior case "are not clear from the record," but questions about the dismissal were relevant as to her bias and credibility.
Defendant argues the court's exclusion of these incidents prevented him from impeaching Sarah's credibility, and the court's rulings were prejudicial because no independent evidence was introduced to undermine her credibility aside from defendant's own trial testimony. Defendant asserts the jury would have obtained a significantly different impression of Sarah's credibility if this evidence had been introduced since it was a close case and the jury found defendant not guilty of count 2, criminal threats.
A. The Court's Discretionary Rulings
" 'As with all relevant evidence ... the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] 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.' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 534-535.)
"Under Evidence Code section 352, the court has discretion to exclude 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.' " [Citation.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
B. Sarah's Probationary Status
Defendant contends the court improperly denied his motion to question Sarah about her probationary status, that she was on probation for DUI offenses at the time of the charged offenses, and that she continued to drink and drive in violation of probation at that time.
Defendant relies on Davis v. Alaska (1974) 415 U.S. 308 (Davis), in support of his argument that the court erroneously excluded Sarah's probationary status. In Davis, the defendant was charged with burglarizing a bar and stealing a safe. A juvenile probationer was a "crucial witness" for the prosecution, and identified the defendant as the man he saw with a crowbar near the place where the empty safe was discovered. (Id. at p. 310.) The witness was on juvenile probation and had been adjudicated a delinquent for burglarizing two cabins. Defense counsel argued he needed to cross-examine the witness about his probationary status, but not for general impeachment of the witness's character. Instead, the defense sought to show that the witness's probationary status led to his possible bias, that he could have helped the police "out of fear or concern of possible jeopardy to his probation," and he might have identified the defendant "to shift suspicion away from himself" or been subject to "undue pressure from the police," and he made his identification "under fear of possible probation revocation." (Id. at p. 311.) The trial court denied the motion because a state law made the witness's probationary status confidential. (Id. at pp. 314-315.)
Davis reversed and held the state's "policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected [the witness] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the [defendant] to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records." (Davis, supra, 415 U.S. at p. 320.)
Davis held the confrontation clause entitled the defendant to expose the "possible bias and prejudice of [the witness], causing him to make a faulty initial identification of [the defendant], which in turn could have affected his later in-court identification" of the defendant. (Davis, supra, 415 U.S. at p. 317, fn. omitted.) "The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness's] vulnerable status as a probationer [citation], as well of [the witness's] possible concern that he might be a suspect in the investigation." (Id. at pp. 317-318, fn. omitted.)
In light of Davis, the California Supreme Court has explained: " ' "[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, 'to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.' " [Citation.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses'] credibility" [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' [Citation.]" (People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-680.)
1. Analysis
In this case, defendant moved to introduce Sarah's probationary status, her two prior DUI convictions, her blood-alcohol levels in those cases, and that she continued to drink and drive in violation of the probation orders, to impeach her credibility. In his opening brief, defendant argues this evidence was relevant to impeach Sarah's credibility. In his reply brief, defendant asserts the instant case is similar to Davis, and the court's evidentiary ruling prevented the defense from showing that Sarah "had a reason to tailor her testimony to fit the prosecution's theory of the case," regardless of whether she had been offered any incentive to testify.
In contrast to Davis, defendant did not make any offer of proof to the trial court that he wanted to impeach Sarah with the fact of her probationary status to show that her testimony was biased because her probation might be in jeopardy. Instead, defendant argued that such evidence was relevant to impeach her credibility because she willingly violated a court order by drinking and driving while on probation.
" 'Misdemeanor convictions ... are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion.' [Citation.] Misdemeanor misconduct involving moral turpitude may suggest a willingness to lie, which is relevant to the credibility of a witness ... [citations]." (People v. Hall (2018) 23 Cal.App.5th 576, italics in original.)
As the trial court noted, Sarah was not subject to impeachment with the fact that she had two prior misdemeanor convictions. In addition, Sarah could not be impeached with her conduct of driving under the influence, because such conduct did not consist of acts involving moral turpitude. (See, e.g., People v. Forster (1994) 29 Cal.App.4th 1746, 1756-1757; In re Kelley (1990) 52 Cal.3d 487, 492, 494; In re Carr (1988) 46 Cal.3d 1089, 1090-1091; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058.)
While the court excluded Sarah's probationary status, it noted that defendant was on parole at the same time and subject to the same prohibitions against drinking and driving. The court granted defendant's motion to introduce evidence that Sarah had been attending DUI classes, and she was drinking and driving at the time of the charged offenses. Both Sarah and defendant testified they met while attending the same DUI class. Defendant went further and explained that the participants in the DUI program would "sit in a circle and kind of just start [talking] about our alcohol use and our abuse and what led to our DUI." (Italics added.)
When Sarah testified about the events that led to the charged assault, she admitted that she was drinking that night, she later drove to another bar and continued drinking, and she was regularly drinking and driving during this time. Defendant similarly admitted that he was drinking and driving on the evening prior to the incident, even though he was still attending a DUI class.
The jury thus heard testimony leading to the obvious inference that defendant and Sarah were attending the DUI class at the time of the charged offenses because they had suffered DUI convictions, and they continued to drink and drive.
Morever, the jury also heard Officer Cox's testimony about his observations when he arrived at the house of defendant's parents. Both Sarah and defendant testified the incident in defendant's bedroom occurred around 7:00 a.m. - Sarah testified defendant assaulted her, and defendant claimed she assaulted him. Cox responded to the scene around 9:00 a.m., just a few minutes after Sarah's first call to 911 when she reported that defendant had assaulted her. Cox spoke to defendant and then had the second officer escort defendant away. He spoke to Sarah for a longer period of time and took photographs of her injuries. At trial, Cox testified that neither defendant nor Sarah appeared to be under the influence.
The jury thus heard testimony that Sarah was drinking and driving when she was attending a DUI class, leading to the inference that she was likely violating an order to refrain from doing so at that time. The jury also heard that Sarah was not under the influence when the officers arrived at the scene. The court did not abuse its discretion or violate defendant's right to present a defense by excluding evidence that Sarah was on probation for prior misdemeanor DUI offenses at the time of the charged offenses. (See, e.g., People v. Carpenter, supra, 21 Cal.4th at p. 1051.)
C. The Prior Domestic Violence Incident
Defendant next argues the court improperly excluded evidence about the October 2015 incident between defendant and Sarah, where she was charged with domestic violence. Defendant argues that evidence about the incident was admissible under Evidence Code section 1103, to show the victim's character for aggressiveness and violence.
" 'As a general rule, evidence that is otherwise admissible may be introduced to prove a person's character or character trait. [Citation.] But, except for purposes of impeachment [citation], such evidence is inadmissible when offered by the opposing party to prove the defendant's conduct on a specified occasion [citation], unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act [citation].' [Citation.] The Evidence Code, however, establishes several exceptions to this general rule. Three interrelated provisions ... are set forth in section 1103, subdivisions (a) and (b). Pursuant to subdivision (a)(1), in a criminal action, the defendant is permitted to offer evidence of the victim's 'character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct)' in order 'to prove conduct of the victim in conformity with the character or trait of character.' [Citation.] Once the defendant has offered such evidence, the prosecution is permitted to offer its own character evidence of the victim to rebut the defendant's evidence. [Citation.] Further, if the defendant has offered 'evidence that the victim had a character for violence or a trait of character tending to show violence,' the prosecution is permitted to offer '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)' in order 'to prove conduct of the defendant in conformity with the character or trait of character.' [Citation.] In other words, if ... 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, 695-696, first italics in original, second italics added in original.)
The admission of character evidence about the victim "is not without bounds, but is subject to the dictates of Evidence Code section 352.... [¶] Section 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 (1985) 39 Cal.3d 576, 587-588.)
We review a trial court's evidentiary rulings regarding Evidence Code sections 1103 and 352 under the deferential abuse of discretion standard. (People v. Fuiava, supra, 53 Cal.4th at p. 700; People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
1. Analysis
When the court addressed defendant's motion to introduce evidence about the October 2015 incident, the parties agreed that there were two conflicting police reports about the domestic violence incident between defendant and Sarah. In one report, an officer concluded defendant was the aggressor; in the other report, an officer concluded that Sarah was the aggressor. Defense counsel stated there were two witnesses to the incident, but the prosecutor said those witnesses were in Canada and defense counsel did not contradict that statement. Defendant was arrested at the time of the incident but never charged. Sarah was arrested and charged, and the charges were subsequently dismissed.
The court did not abuse its discretion by excluding evidence about the October 2015 incident. There was no indication that the two alleged witnesses were available to testify. Thus, evidence about the prior incident would have been based on testimony from defendant and Sarah, possibly enhanced by testimony from the officers who investigated the incident and filed contradictory reports about the event. Moreover, any evidence introduced by the defense to show Sarah was responsible would have resulted in the People's ability to introduce contrary evidence that defendant was the aggressor.
While prior acts of domestic violence between defendant and Sarah may have been relevant, the court had discretion under Evidence Code section 352 to prevent "inefficient mini-trials" of their prior acts. (See, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 916; People v. Johnson (2000) 77 Cal.App.4th 410, 419.) Under section 352 "the court could reasonably conclude [the proffered evidence] was not probative enough to outweigh its potential for prejudice in terms of time consumption and issue confusion." (People v. Vargas (2001) 91 Cal.App.4th 506, 543.)
Defendant introduced similar evidence about the nature of their prior relationship in the same way he would have introduced evidence about the October 2015 incident - through his trial testimony that Sarah had been violent toward him in the days and hours leading to the incident in this case, and that she was the aggressor and he was forced to defend himself.
D. Dismissal of Charges Previously Filed Against Sarah
Finally, defendant argues that the court abused its discretion by preventing him from questioning Sarah about the dismissal of the charges that had been filed against her based on the October 2015 domestic violence incident that she allegedly committed against defendant. Defendant asserts such questions were highly relevant since the charges against her for committing an act of domestic violence against defendant were dismissed four days after defendant was charged in this case. Defendant concedes the reasons for the "convenient dismissal" were not clear from the record, but "whatever those reasons may have been, [defendant] should have been allowed to cross-examine [Sarah] as to her understanding as to why the case was dismissed," and it would have been relevant for her credibility and bias. Defendant further argues that regardless of any agreement for the dismissal, Sarah should have been questioned about whether she believed her testimony acted "as a quid pro quo" for the dismissal of the charges against her.
During the pretrial hearing on defendant's motion, the prosecutor stated her belief that the charges against Sarah for the October 2015 domestic violence incident were dismissed because of the conflicting police reports about who was responsible, and the probable difficulty to prove the case. There was no evidence that the prior case was dismissed in exchange for Sarah's testimony against defendant in this case.
Defendant's appellate argument to the contrary is completely undermined by the trial record. The court initially decided to exclude evidence about the October 2015 incident because of the confusing circumstances and conflicting police reports. As the court was issuing its ruling, the following exchange occurred:
"THE COURT: ... So at this point I am not going to allow any evidence concerning the October 16, 2015 incident. The court finds that to go into that issue as to why the case was dismissed it would be completely inappropriate. There is no suggestion that - if there is, please let me know, but there's no suggestion that somehow there was some deal struck between the District Attorney's Office, whoever was there that day, and this witness to say, no, we need you to testify against [defendant]. If there is something like that -
"[DEFENSE COUNSEL]: No. And I have no reason to believe that's actually what happened.
"THE COURT: Right. But that - I believe you understand what the implication would be and that would be inappropriate information in the absence of evidence, there being some type of collusion. So I'm not going to - I'm not going to allow that. That would be pure speculation and it's not appropriate." (Italics added.)
Defense counsel thus conceded there was no evidence of "some deal struck," as now suggested on appeal. The court properly denied defendant's motion to question Sarah about why the charges were dismissed.
DISPOSITION
The court did not abuse its discretion when it denied defendant's evidentiary motions. The judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.