Opinion
A144089
08-16-2017
THE PEOPLE, Plaintiff and Respondent, v. DAMIEN WILLIAM CHRISTENSEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1401709)
Defendant Damien William Christensen appeals a judgment of conviction entered after a jury trial, contending the trial court improperly limited the scope of the evidence he could present to impeach a prosecution witness. We conclude the trial court did not abuse its discretion in limiting the scope of proffered impeachment evidence, and we therefore affirm.
I. BACKGROUND
A. Procedural History
Christensen was charged in an amended information with (1) second degree robbery (Pen. Code, § 211) (count 1), (2) corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) (count 2), (3) criminal threats (Pen. Code, § 422) (count 3), and (4) false imprisonment by violence (Pen. Code, § 236) (count 4). In connection with counts 3 and 4, the information alleged Christensen personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
In the second of two trials on these charges, the first having ended in a mistrial when a previous jury deadlocked, the jury in this case returned verdicts of guilty on counts 1 and 4, guilty on count 2 but of the lesser offense of battery against a cohabitant (Pen. Code, § 243, subd. (e)(1)), and not guilty on count 3. It found the personal use of a firearm allegation to be not true.
B. The Evidence at Trial
1. The Prosecution Case
Jane Doe testified for the prosecution. She testified that she and Christensen met in mid-March 2014 and Christensen moved in with her shortly thereafter. The relationship quickly became tumultuous.
On April 7, 2014, Christensen told Doe he had put an application on her phone that tracked her e-mails and text messages. Christensen said he was angry Doe had been texting her ex-husband, and told her she must stop doing so. In front of Doe, Christensen called a friend and stated he was putting a "green light" on Doe's ex-husband to "teach him a lesson" for talking to her. Doe was worried and wanted to end the relationship with Christensen, but did not know how to do so. Later, Doe contacted her cell phone provider, which informed her it did not find a tracking application on her phone.
The charges in this case arise from events that occurred on the night of April 9, 2014. When Doe returned home that evening, she testified, Christensen was there and had been drinking. Christensen told Doe he had interacted with a member of the 18th Street Gang at the developmentally disabled facility across the street from Doe's house earlier that day, and that Christensen had to "knock him out." Christensen claimed to be concerned about retaliation, and told Doe he needed her gun. When she refused to get the gun for him, he became angry.
Doe grew concerned about Christensen's behavior and texted her friend Michael about her fears. She then hid her cell phone in her boot. Christensen began asking Doe for her phone. Doe said she did not know where it was. Christensen grabbed her by her hair and dragged her upstairs. Then he led her back to the stairs, where he kicked her and knocked her to the floor. He pulled off her boots and found the phone. Christensen then grabbed Doe by the arm and escorted her out to her truck, where she kept her checkbook. He forced Doe to write a check for $700. She started writing a check addressed to him, but Christensen told her instead to make it out to "cash," and she complied. Doe testified that when they moved in together, Christensen had a friend deposit $700 or $800 in her bank account, which they used to pay for bills, groceries, and the rent for Christensen's boat slip.
On the night of the incident, Christensen told Doe she owed him the $700 for damaging his computer. Doe denied breaking his computer. Christensen told Doe that he had been "thinking about it all day long and planning it, and he would be tying [Doe] up first." He told her that " 'it's gonna be a very long night' " and if the check didn't clear, she would be killed. He also threatened to kill her family. He said, " 'I'm gonna start with your daughter first, and I'm gonna slit her throat. And slowly. She's gonna die slowly, and I hope you can watch. And then I'll move on to your son.' " He also threatened to burn down the house.
Christensen dragged Doe upstairs and demanded her gun, which she told him was in her purse. He ordered her to take off her sweater, tank top, and bra. She complied. He took her to the kitchen and had her bend over the stove, where he bound her with 36-inch zip ties, tying her wrists behind her back, and tying a zip wrapped around her neck to her wrists. He told her if she moved the ties would tighten. He then took Doe back to her room, where he got her gun and waved it around in front of her. As he waved the gun around, he berated Doe in a whisper. This went on for hours, with Christensen chain-smoking, and blowing smoke in Doe's face, and telling her she was a failure.
When Christensen left the room to look for more cigarettes, Doe was able to free herself partially from the zip ties and lock the bedroom door. She then climbed out a window and onto the roof, while still half undressed. Christensen returned to the bedroom and kicked in the locked door. Then his demeanor completely changed. Through the window, he apologized, told Doe he wanted to make the relationship work, and tossed her a sweater. This conversation took place while she was still partially clad, on the roof, and with Christensen holding a gun. Christensen left the window and went to sleep in the bed. Doe went inside and got dressed and looked around the house for her phone and her gun.
Doe did not call the police immediately because she was afraid. In the morning, she called her friend Michael, and the police later came to her workplace and interviewed her. The officers observed red marks on her wrist, scrapes on her knees, and a bruise on her leg. A photograph was taken of her wrists, which appeared to show indentations from zip ties.
Police searched Doe's home and found zip ties and a check for $700 made out to "cash." The molding on the bedroom door appeared damaged.
2. The Defense Case
Christensen testified on his own behalf. He testified that Doe was jealous of his conversations with a female friend and that he attempted to leave Doe on three occasions. One time, when he tried to leave, he could not, because Doe had his car keys. According to Christensen, Doe followed him outside, screaming at him for hours. He packed his things, and she unpacked them and threw everything around. After eight hours, she started sobering up and apologized. He decided not to leave.
On the night of the incident, Christensen testified, Doe was drinking and they had an argument. He thought Doe had had enough to drink, so he poured out the rest of her vodka. Doe got angry and threw a laundry basket at Christensen, knocking over a wire rack with some zip ties on it. He tried to put the rack back together and straighten up the zip ties, since they were being used in the remodeling work he was doing on her kitchen. Doe then grabbed a zip tie and tied her own wrist. He closed all the other zip ties so she could not put them on her body.
Christensen again decided to leave and was upstairs packing his things. When Doe saw that Christensen was packing, she became very angry. He asked Doe to give him $700 to cover some of the $1,000 he had put in her account, and she wrote a check for that amount, but she continued to abuse him verbally. Christensen testified that Doe then pointed a gun at herself and at him, but he grabbed it away, took the gun downstairs, hid it on the fireplace mantle, and then returned upstairs. Doe was screaming and slammed the bedroom door. He forced his way in, breaking the molding in the process.
Doe had gone out the window onto the roof. Christensen tried to get her to calm down and said he was not going to leave, but eventually gave up and said "fine, stay out on the roof," throwing her a blanket. He was exhausted and lay down on the bed. Doe climbed back inside after about an hour, and Christensen fell asleep. The next morning, Doe woke him up, brought him coffee, and asked if he was really going to leave. He told her he would be gone before she got home from work that day. The police came to Doe's home later that day and arrested him.
C. The 2005 Shasta County Incident
Christensen moved to admit evidence of a 2005 incident in Shasta County to impeach Doe.
In that incident, Doe's then boyfriend alleged that Doe had committed vandalism and certain acts of violence against him during an argument between them. The boyfriend said he and Doe had been dating for two years. She came over to his home. He told her to leave and that he did not want to argue anymore. She became angry and threw a glass coffee pot at him, which missed. He said she screamed at him, tipped over his tools, and punched and kicked him.
According to Deputy Sheriff Harper, who interviewed the putative combatants, he did not see any marks on the boyfriend that indicated being punched, but did see fingernail marks on his face. The boyfriend said Doe broke the windshields of three of his vehicles. He said she hit him in the ribs and threw a wood hatchet at him, which missed. Doe told Deputy Harper a different version of events. She said that she and her boyfriend had an argument but that he was the one throwing items and damaging her car. She admitted to damaging his vehicles, but said this only happened after he took a sledgehammer to her car. She said her boyfriend shook her violently and threatened her with a fire poker.
Doe was arrested for a domestic violence offense (Pen. Code, § 273.5, subd. (a)) and was ultimately convicted of misdemeanor vandalism arising from this incident—but she was not convicted of any domestic violence crimes.
D. The Trial Court's Ruling on Doe's Impeachment
At trial, Christensen submitted a motion in limine seeking to introduce Doe's vandalism conduct for impeachment purposes. The trial court ruled that the circumstances underlying the vandalism conviction were admissible for impeachment. After reviewing Deputy Harper's report summarizing the conflicting versions of what happened, the court ruled that the domestic violence aspects of the incident would be excluded. The court stated, "I don't think you can go beyond the factual basis for the vandalism. I don't think you can get into the domestic violence stuff. I think that's [Evidence Code section] 352 stuff."
In a prior trial in this case that resulted in a hung jury, a different trial judge did not place limits on the scope of cross-examination about the impeachment incident. At the time of that ruling, Deputy Harper's report had not been received by the court.
On cross-examination of Doe, Christensen's trial counsel asked Doe about the vandalism incident. Counsel asked if she had been involved in a vandalism situation, and she said yes. Counsel asked if she broke a coffee pot by throwing it at someone, and she said no. He asked if she used a maul to break windshields, and she answered that she had thrown her broken chop saw at a truck that did not run anymore. He asked if she was convicted of vandalism, and she replied that she did have a misdemeanor vandalism conviction.
II. DISCUSSION
A. Standard of Review
A trial court's ruling as to whether to admit evidence of past acts to impeach a witness is reviewed for abuse of discretion. (People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.) "To constitute an abuse of discretion, 'the resulting injury [must be] sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, . . . the court [must] exceed[] the bounds of reason, all of the circumstances being considered.' [Citation.] In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise." (Ibid.)
B. The Trial Court Did Not Abuse Its Discretion in Limiting the Scope of Impeachment Evidence
Evidence of a witness's prior conduct involving moral turpitude is admissible to impeach the witness. (People v. Wheeler (1992) 4 Cal.4th 284, 295-297 (Wheeler), superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460.) Both vandalism and domestic violence involve moral turpitude. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1492-1493 [vandalism]; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402 [domestic violence].) But the trial court retains discretion under Evidence Code section 352 to exclude uncharged misconduct offered for impeachment purposes. (See Wheeler, at pp. 295-298.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Evidence Code section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler, at p. 296.)
Impeachment evidence based on a witness's uncharged conduct is especially problematic. In Wheeler, the court noted that "impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler, supra, 4 Cal.4th at pp. 296-297.)
A trial court may properly exclude evidence of past misconduct when evidence of a prior incident would divert the jury's attention from the case at hand. In one California Supreme Court case, a witness testified in a trial involving rape and murder charges about the defendant's sexual advances toward her when she was 17 years old. (People v. Bittaker (1989) 48 Cal.3d 1046 (Bittaker), overruled in part on other grounds by People v. Black (2014) 58 Cal.4th 912, 919.) The defendant sought to impeach the witness with evidence that she had falsely accused two men of sexual molestation. (Bittaker, at p. 1097.) The trial court excluded this impeachment evidence under Evidence Code section 352, and the Supreme Court found this ruling was not an abuse of discretion. (Bittaker, at p. 1097.) The court wrote, "[t]he value of the evidence as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two long-past sexual incidents which never reached the point of formal charges. Such a proceeding would consume considerable time, and divert the attention of the jury from the case at hand." (Ibid.)
In this case, the trial court reasonably could conclude that allowing the domestic violence evidence to be admitted would result in a distracting "mini-trial" about unproven domestic violence allegations from nine years earlier. Doe did not admit those allegations, so it might have been necessary for the jury to hear testimony from her ex-boyfriend or from Deputy Harper. Given the conflicting stories in Deputy Harper's report from 2005, the jury would likely have had to sift through conflicting testimony based on faded memories of what exactly Doe did back in that incident. Christensen suggests that the evidence on this issue could have been presented succinctly. Granted, there might have been very little evidence to present from so long ago, but that also suggests it would likely have raised more questions than answers and led to speculation.
Of greatest significance, however, the court's ruling did not categorically preclude Christensen from using the 2005 incident to impeach Doe's credibility. The court allowed inquiry into Doe's misdemeanor vandalism conduct. With evidence of a substantiated crime of moral turpitude in hand, Christensen was able to challenge Doe's credibility. From the defense perspective, throwing additional, incendiary charges of domestic violence into the mix might have been useful as a way to inflame the jury against both antagonists, and perhaps achieve a "pox on both your houses" result, but that only underscores why the trial court was right to screen the proffered evidence carefully under Evidence Code section 352.
We think the balance the court struck was correct. It was reasonable to excise out the most uncertain and volatile element of the 2005 incident—the contested allegations of domestic violence—since that aspect of the incident had the most significant potential for collateral distraction and undue time consumption, while bringing very little of probative value beyond what the vandalism already established. On the facts presented, we certainly cannot say the trial court's exercise of discretion was so far beyond the bounds of reason that it must be corrected to avoid a manifest miscarriage of justice. Quite the contrary, the record shows the court carried out its gate-keeping role under Evidence Code section 352 based on due consideration for the relevant criteria.
Even if there were no error under state law evidentiary principles, Christensen contends the court's ruling violated his federal constitutional rights to confront witnesses and to present a defense under the Fifth, Sixth, and Fourteenth Amendments. We reject that argument as well. "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." (Taylor v. Illinois (1988) 484 U.S. 400, 410.) A trial court's application of the ordinary rules of evidence generally does not infringe a defendant's constitutional rights. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; see also People v. Roybal (1998) 19 Cal.4th 481, 506, fn. 2 ["The superior court did not abuse its discretion; there is thus no predicate error on which to base the constitutional claims."].) Here, Christensen has not demonstrated why the application of the rules of evidence rose to the level of a constitutional violation.
For the reasons we have explained above, the jury was not left with an impression of Doe's credibility that was significantly different than it would have been had the domestic violence evidence been admitted. (See People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) The Ninth Circuit cases Christensen cites are not binding on us, and bear little resemblance to this case in any event. (See Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 877 [excluded expert testimony was "highly probative" and had "remarkable impeachment value"]; Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1273 [state had "no rational justification" for exclusion of testimony constituting the only evidence casting doubt on credibility of sole prosecution witness], overruled on other grounds in Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1217, fn. 18, reversed on other grounds in Brown v. Payton (2005) 544 U.S. 133.) A Ninth Circuit case cited by the People, Sully v. Ayers (9th Cir. 2013) 725 F.3d 1057, 1074-1075 [limitations on cross-examination did not prevent the defendant from exploring bias, motivations to lie, and consistency of prosecution witness in other ways], seems more apt on this record.
Because we conclude the court did not err in limiting the scope of impeachment, we need not address the parties' arguments as to whether any error was prejudicial. --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.