Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F02176
NICHOLSON, J.
A jury convicted defendant Lance Dee Clemens of assault with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); undesignated section references are to this code) and found that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In bifurcated proceedings, the jury found that defendant had sustained two prior serious felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).
Sentenced to state prison, defendant appeals, contending the trial court erroneously excluded evidence of the victim’s illegal alien status. He also requests that this court review the school records of a juvenile witness to determine whether the records contained information helpful to his defense. We affirm the judgment.
FACTS
On March 11, 2005, Patrick Ortiz visited his old apartment complex and saw defendant. Defendant got into Ortiz’s car and they rode over to Ortiz’s current apartment complex. After Ortiz parked in the parking lot and got out of the car, Pablo Garcia greeted Ortiz. Thirteen-year-old Tiffany B., Garcia’s girlfriend, stood nearby while Garcia spoke with Ortiz. No one else was in the parking lot. Garcia recognized defendant, who had told Garcia that it was inappropriate for Garcia to be dating Tiffany since she was too young. Tiffany knew defendant’s step-daughter and they had some sort of problem the previous week.
Defendant got out of the passenger side of Ortiz’s car and approached Garcia. Tiffany saw defendant holding a shiny object. When Garcia put out his hand to say “hi,” defendant stabbed Garcia in the stomach and right arm. Garcia, not realizing he had been stabbed, said, “What’s your problem?” Defendant either ran or walked away. Tiffany assisted Garcia to the apartment stairs, grabbed a towel in her apartment and yelled to her mother to call 911.
Defendant was detained at his home. A search revealed a folded knife under his mattress. No blood was found on the knife.
At the preliminary hearing, Garcia and Tiffany lied about their relationship, denying that it was sexual. At trial, under a grant of use immunity, Garcia admitted that his relationship with Tiffany was sexual, that he had lied at the preliminary hearing in stating otherwise, and that he had recently been arrested for an act of domestic violence against Tiffany. Although the trial court explained use immunity to Garcia, Garcia did not understand the term immunity but believed that he could be deported to Mexico or go to jail for previously lying.
Garcia admitted that he had falsely told his uncle that someone other than defendant had stabbed him but he never identified anyone else other than defendant.
Defendant’s neighbor, Donna Miesen, claimed that on March 12, 2005, Tiffany used Miesen’s phone to call Garcia. Miesen overheard Tiffany say, “‘You mean you’re going to tell them that Lance Clemens did this?’” Miesen admitted on cross-examination that she had actually overheard Tiffany say, “‘Is that what you’re go[ing] to say: Lance did it?’” Miesen stated that the two statements meant the same to her. Miesen did not reveal for three months what she had overheard although she had been interviewed by the defense investigator.
Aaron Curioca, a resident at Garcia’s apartment complex, claimed that when he found Garcia on the stairs, he had his wife call 911. When Tiffany came out of her apartment, she was not upset until she saw that Garcia had been stabbed. Curioca was not present when Garcia was stabbed and did not know whether Tiffany had been.
When interviewed by officers on March 11, 2005, Tiffany did not mention the shiny object in defendant’s hand. She stated that Ortiz and another man held defendant back from hitting Garcia again.
Ortiz denied telling defendant to calm down and to leave Garcia alone.
DISCUSSION
I
Prior to trial, defense counsel sought to cross-examine Garcia about his purported illegal alien status in order to show bias and motive to lie that defendant was the perpetrator. Defense counsel argued it was relevant to show “that he may not be completely forthcoming with law enforcement with respect to the events of the case and/or may even fabricate events in order to portray himself in a sympathetic light with law enforcement.” Defense counsel admitted he had no idea whether Garcia was in the country legally or illegally. The prosecutor did not know either. In denying defense counsel’s request without prejudice, the trial court distinguished Davis v. Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347] (Davis), noting that even assuming Garcia was a Mexican national, Garcia was not on probation nor was he responsible for his own stabbing and the prosecutor had no leverage with respect to deportation. The trial court concluded such questioning would be more prejudicial than probative in view of the “hostility” the issue of illegal immigration raised in some members of society and that there was a substantial danger of confusing the issues and misleading the jury. The court invited either party to raise the issue again if it became relevant. Defense counsel never raised the issue again. Even when Garcia testified on cross-examination that he believed that he might be deported to Mexico for lying at the preliminary hearing, defense counsel did not seek to explore the issue further, that is, ask Garcia whether he was an undocumented or illegal alien.
On appeal, defendant contends the court’s ruling violated his right to confrontation and compulsory process and his due process right to present material witness testimony. We reject defendant’s contention.
“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings . . . . [¶] . . . [¶] Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’[s] story to test the witness’[s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” (Davis, supra, 415 U.S. at pp. 315-316.)
“[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.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684] (Van Arsdall), quoting Davis, supra, 415 U.S. at p. 318.) “[T]he focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial.” (Van Arsdall, supra, 475 U.S. at p. 680.)
“[T]he constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. [(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)] The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’[s] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Van Arsdall, supra, 475 U.S. at p. 684.)
“[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” (Van Arsdall, supra, 475 U.S. at p. 679.) “In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.” (People v. Quartermain (1997) 16 Cal.4th 600, 623.) Evidence Code section 352 authorizes the court to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The court’s exercise of its discretion violates neither the Sixth Amendment nor the California Constitution unless defendant can show the prohibited cross-examination might have resulted in “a significantly different impression of [the witness’s] credibility.” (Van Arsdall, supra, 475 U.S. at p. 680; People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051; People v. Frye (1998) 18 Cal.4th 894, 946.)
Defendant’s reliance upon Davis, supra, 415 U.S. 308 [39 L.Ed.2d 347] is misplaced. In Davis, the Supreme Court considered “whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’[s] probationary status as a juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.” (Id. at p. 309.)
In Davis, the defendant was charged with the theft of a safe which was found near the home of Richard Green, a crucial prosecution witness. The prosecutor sought a protective order, preventing any cross-examination of Green concerning his juvenile record for burglary. The defense sought to show a motive on the part of Green, who was on probation, to shift suspicion away from him and to implicate the defendant or to avoid a violation of probation for failure to cooperate with the police investigation. The trial court granted the prosecutor’s motion. (Davis, supra, 415 U.S. at pp. 310-311.) Davis concluded that “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record -- if the prosecution insisted on using him to make its case -- is outweighed by [the defendant’s] right to probe into the influence of possible bias in the testimony of a crucial identification witness.” (Id. at p. 319.) Davis found the limited cross-examination allowed was inadequate and that the defendant was denied the right to effective cross-examination, by preventing the defendant from showing the witness’s bias and prejudice. (Id. at pp. 317-318.)
As the trial court noted, Davis is distinguishable in many respects, including that Garcia was not on probation nor was he responsible for his own stabbing. Further, there was no state interest in preserving the confidentiality of Garcia’s immigration status.
Defendant also relies upon People v. Viniegra (1982) 130 Cal.App.3d 577 (Viniegra). In a prosecution of the defendant for fraud in obtaining public aid and food stamps and for perjury, a defense witness testified that he had paid rent to someone other than the defendant where it was the prosecution’s theory that the defendant owned the property and collected the rent money. The prosecutor attempted to impeach the defense witness for motive and bias by showing “the witness was an illegal alien and that he worked at the same place as defendant’s husband.” (Id. at p. 580.) “The question was then asked if he was not testifying for defendant in fear that he would otherwise be ‘turned in as an illegal alien . . . .’ An objection of ‘irrelevant and also highly prejudicial’ was overruled, and the witness answered, ‘I’m not afraid. No. They would be returning me to my native land.’” (Ibid.) Viniegra found no prosecutorial misconduct or trial court abuse of discretion in allowing impeachment to establish a motive or bias for testifying, noting there was no claim that the cross-examination “was conducted in bad faith in order to bring nonexistent matter before the jury.” (Id. at p. 580.) Viniegra also found any error harmless. (Id. at p. 581.)
Viniegra is distinguishable. The prosecutor showed that the defense witness had a motive to lie on defendant’s behalf in exchange for her and her husband’s agreement not to turn him in as an illegal alien.
In the trial court below, the prosecutor cited and the trial court relied upon People v. Williams (1991) 228 Cal.App.3d 146 (Williams) where the defendant, a Black man charged with second degree robbery, sought to cross-examine the victim, a Hispanic man, about the length of his residency. The trial court in that case found the question to be irrelevant. The defense question about the victim’s citizenship status was also found to be irrelevant. The trial court did allow the defendant to cross-examine regarding the victim’s “past experiences with Black people.” (Id. at p. 149.) In rejecting the defendant’s claim that his cross-examination regarding cross-racial identification was improperly limited, Williams concluded that the victim’s testimony that he had had no interactions with Black people did not allow cross-examination regarding his residency status because it “would not have developed additional insight into his ability to correctly identify an assailant of a different race.” (Id. at pp. 149-150.) Williams also rejected the defendant’s claim that he was precluded from establishing the victim’s bias against Blacks based on the length of time of his residency, finding that the duration “would have no tendency in reason to prove that he held a bias against Black people.” (Id. at p. 150.)
Defendant speculates that “[t]he real culprit may have been Ortiz, or Ortiz’s son, or even Tiffany . . ., against whom Garcia later apparently committed an act of domestic violence. [Citation.] Or, it may have been one of [Tiffany’s] relatives or Garcia’s uncles that Garcia was trying to protect.”
Prior to trial, defense counsel was unable to determine that Garcia was in the country illegally. The trial court denied the motion but invited the parties to raise the issue again if it became relevant. During trial, defense counsel did not seek to explore the issue further when Garcia stated that he believed he could be deported to Mexico for lying at the preliminary hearing. That alone is sufficient to find defendant’s contention without merit and to find no abuse of discretion. Moreover, had defense counsel sought to ask Garcia about his immigration status, the trial court may have been faced with Garcia asserting his right against self-incrimination if he had been asked about his immigration status. We reject defendant’s assertion that had the jurors known Garcia was an illegal alien, as opposed to a legal resident alien, the jury would have concluded Garcia had a strong motive to cooperate because it was more likely he would be deported. Defendant has failed to show that the requested cross-examination would have resulted in “a significantly different impression of [Garcia’s] credibility.” (Van Arsdall, supra, 475 U.S. at p. 680.) Failure to do so means the trial court’s ruling did not violate defendant’s confrontation right. Garcia was adequately impeached with his previous lies, those about his improper relationship with 13-year-old Tiffany, his statement to his uncle that someone other than defendant was responsible, and his other alleged crime of moral turpitude, i.e., his act of domestic violence against Tiffany. Further, Garcia blurted out his belief he could be deported, thus effectively advising the jury of his purported illegal alien status. Any error was harmless beyond a reasonable doubt. We further concluded that there was no violation of defendant’s due process rights.
II
Defendant subpoenaed Tiffany’s school records and requested that the trial court review the records and release any evidence regarding moral turpitude, bias or misconduct which related to her credibility. During the prosecution’s case-in-chief, after Tiffany testified, the trial court reviewed the records and concluded that there was nothing relevant to assist defendant’s defense. Defendant requests that this court conduct an independent review of the records and determine whether the trial court correctly ruled. The Attorney General argues that no review is necessary because the record does not reflect the trial court’s ruling was incorrect and further, Tiffany was impeached with her lie about her sexual relationship with Garcia and her inconsistent statements to officers.
“[T]he due process clause requires the ‘government’ to give the accused all ‘material’ exculpatory evidence ‘in its possession,’ even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of ‘absolute’ confidentiality exists. [Citation.] When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are ‘material’ to guilt or innocence. [Citation.] In [Pennsylvania v.] Ritchie [(1987) 480 U.S. 39 [94 L.Ed.2d 40] (Ritchie)], the high court held that a complete in camera review of confidential records generated by a state agency as part of a molestation investigation was required where the defendant claimed they might undercut the complaining witness’s credibility and where state law did not bar their disclosure under all circumstances.” (People v. Webb (1993) 6 Cal.4th 494, 518.)
In Ritchie, the issue was whether a defendant’s rights to confront and cross-examine witnesses and to due process outweighed the state’s interest in the confidentiality of its child protective agency’s investigative files. (Ritchie, supra, 480 U.S. at pp. 42-43.) The defendant was charged with sexual offenses involving his 13-year-old daughter who had reported the offenses to the police, which turned the matter over to the agency. Serving the agency with a subpoena, the defendant sought to discover the agency's investigative files with respect to his daughter and her accusations as well as the agency's investigative files with respect to a prior child abuse report by an unidentified source. (Id. at p. 43.) The agency refused to comply with the subpoena, citing the Pennsylvania statute which made the agency’s investigative files confidential, “subject to 11 specific exceptions . . . [o]ne of [which allowed disclosure] to a ‘court of competent jurisdiction pursuant to a court order.’ [Citation.]” (Id. at pp. 43-44, fn. omitted.) After a hearing in chambers, the trial court denied the defendant’s motion for sanctions against the agency and refused to order the agency to disclose its files. (Id. at p. 44.) At trial, the defendant’s daughter testified against him and defense counsel thoroughly cross-examined her, without limitation on the scope. The defendant was convicted on all counts. (Id. at pp. 44-45.) He appealed, contending that the failure to disclose the agency’s files violated his rights to due process and to confront and cross-examine witnesses. (Id. at p. 45.)
Four members of the Ritchie court, the Chief Justice and Justices Powell, White and O’Connor, concluded in the plurality opinion that the defendant did not have the right to examine the agency’s files under the right of cross-examination prong of the confrontation clause since the right of confrontation is a trial right, not a right of pretrial disclosure of information. (Ritchie, supra, 480 U.S. at pp. 42, 51-54.) They concluded that the confrontation clause was not violated because defense counsel was able to fully cross-examine the defendant’s daughter. (Id. at p. 54.) Justice Blackmun concluded that denial of pretrial access to the agency’s file that would facilitate effective cross-examination of a crucial prosecution witness may constitute a violation of the confrontation clause. (Id. at pp. 61-66 (conc. opn. of Blackmun, J .) Justices Brennan and Marshall dissented, concluding that a violation of the confrontation clause occurred in the case since the defendant was denied access to the file and the victim’s prior statements with which he sought to impeach the victim at trial. (Id. at pp. 66-72.)
The Ritchie plurality considered the defendant’s claims under the due process clause of the Fourteenth Amendment, citing, inter alia, Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady). (Ritchie, supra, 480 U.S. at p. 56.) “It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. [Citations.] Although courts have used different terminologies to define ‘materiality,’ a majority of this Court has agreed, ‘[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ [Citations.] [¶] At this stage, of course, it is impossible to say whether any information in the [agency’s] records may be relevant to [the defendant’s] claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file.” (Ritchie, at p. 57.)
In rejecting the state’s argument that disclosure would contravene the state’s interest in confidentiality and the statutorily privileged nature of the agency’s files “on the mere speculation that the file ‘might’ have been useful to the defense,” Ritchie stated: “Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants [the agency] the absolute authority to shield its files from all eyes. [Citation.] Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when [the agency] is directed to do so by court order. [Citation.] Given that the Pennsylvania Legislature contemplated some use of [the agency’s] records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is ‘material’ to the defense of the accused. [¶] We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. [The defendant] is entitled to have the [agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by [the agency] contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.” (Ritchie, supra, 480 U.S. at pp. 57-58, fns. omitted, emphasis in original.)
Here, Tiffany’s records may be disclosed in certain circumstances. Education Code section 49076 provides that “[a] school district is not authorized to permit access to pupil records to any person” with numerous specified exceptions including “under judicial order.” As in Ritchie, “[t]his is not a case where a state statute grants [the school district] the absolute authority to shield its files from all eyes.” (Ritchie, supra, 480 U.S. at p. 57.)
The trial court reviewed Tiffany’s records in camera. In denying defendant’s request for information from Tiffany’s school records, the trial court stated, “There is nothing in all of that material that is of any relevance at all to this proceeding, in the Court’s judgment, even without the weighing process and the process that’s implicit in Hammon. [¶] In other words, since I don’t find there is anything of any consequence or relevance to this proceeding in any respect, it’s not necessary to weigh her rights to privacy against the defendant’s Sixth Amendment confrontation right. [¶] . . . [¶] Let me say this just so the record will be clear, is that going back to earlier grade school days, nothing at all recent, there are minor transgressions that had they been committed by an adult arguably could go to moral turpitude. But I’m talking about, like, in the fourth or fifth grade, you know, hitting somebody, that kind of thing. [¶] But I don’t find, again, based upon my review as to relevance to begin with, and then secondly, with respect to weighing it against her rights and the defendant’s rights, that there is any relevant, credible, admissible evidence that would come of this that could in any respect assist [defendant] in his case.”
In People v. Hammon (1997) 15 Cal.4th 1117, the California Supreme Court “decline[d] to extend defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information.” (Id. at p. 1128, emphasis added.)
We have reviewed the records and conclude that while one very remote incident was arguably relevant, nondisclosure was harmless beyond a reasonable doubt. The trial court otherwise properly ruled.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.