Opinion
F039027.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. KIRK MONROE DAVIS, Defendant and Appellant.
Kevin G. Little, and Allan E. Junker for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant appeals from a judgment of conviction of possession of a deadly weapon (a 10-inch piece of taped, galvanized pipe), four prior serious felony convictions, and two prior prison terms following three trials and the passage of almost seven years since his initial arrest on the substantive offense charged here.
STATEMENT OF CASE
First Trial
On December 9, 1996, the Tulare County District Attorney filed an information in superior court charging appellant as follows: count I-possession of a deadly weapon (Pen. Code, § 12020, subd. (a)) with two prior felony convictions (§ 1170.12, subd. (c)(2)(A)) precluding a grant of parole (§ 1203, subd. (e)(4)) and a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On December 17, 1996, the Tulare County District Attorney filed an amended information in superior court charging appellant as follows: count I-possession of a deadly weapon (§ 12020, subd. (a)) with three prior felony convictions (§ 1170.12, subd. (c)(2)(A)) precluding a grant of parole (§ 1203, subd. (e)(4)) and a prior prison term (§ 667.5, subd. (b)).
On the same date, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
On February 20, 1997, appellant moved to suppress tangible and intangible evidence on the ground such evidence was the product of an illegal detention and arrest. (§ 1538.5.)
On February 23, 1997, the People filed written opposition to the motion, arguing, among other things, the encounter between appellant and law enforcement officers was consensual.
On March 3, 1997, defense counsel withdrew the suppression motion due to the absence of a witness and an inability to obtain a continuance of a hearing on the motion.
On April 29, 1997, the court granted a defense motion to continue appellants jury trial for approximately one month. On May 28, 1997, the court continued the matter again and reset trial for July 17, 1997.
On July 3, 1997, appellant moved to compel discovery of police reports reflecting misdemeanor conduct of prosecution witness Robert Simmons. (§ 1054.5.)
On July 9, 1997, the People filed written opposition to appellants motion.
On July 15, 1997, the court conducted a pretrial hearing, confirmed the July 17, 1997, trial date, and ordered the prosecution to provide the defense with reports of Simmonss misdemeanor conduct or misconduct for the preceding 10 years.
On July 17, 1997, the date set for trial, appellant moved in limine to exclude evidence of his prior uncharged misconduct. (Evid. Code, § 1101, subd. (b).) On the same date, the court reset the matter for jury trial on September 4, 1997.
On July 28, 1997, the district attorney filed a second amended information in superior court charging appellant as follows: count I-possession of a deadly weapon (§ 12020, subd. (a)) with four prior felony convictions (§ 1170.12, subd. (c)(2)(A)) precluding a grant of parole (§ 1203, subd. (e)(4)) and a prior prison term (§ 667.5, subd. (b)).
On August 8, 1997, appellant was arraigned on the second amended information, pleaded not guilt to the substantive count, and denied the special allegations.
On September 4, 1997, jury trial commenced in superior court and appellant admitted the truth of the alleged "prison priors." The court ordered the priors bifurcated from evidence to be presented at trial and directed that appellants registration requirement under section 290 not be mentioned during trial.
On September 5, 1997, both sides rested, the court instructed the jury, and the jurors retired to deliberate.
On September 8, 1997, the court determined the jury could not reach a unanimous verdict and declared a mistrial.
Second Trial
After numerous continuances, the court set jury trial for August 27, 1998.
On July 27, 1998, appellant moved for disclosure of the personnel records of investigating officer Frank Furtaw. (Evid. Code, § 1043.) On the same date, appellant filed a number of in limine motions regarding trial evidence, a motion to compel discovery (§ 1054), a motion to suppress evidence (§ 1538.5), to set aside the information (§ 995), to strike prior convictions (§ 1385), and to recuse the trial judge, the Honorable Martin Staven (Code Civ. Proc., § 170.6).
On August 3, 1998, the court denied appellants recusal motion as untimely, vacated the August 27, 1998, trial date pursuant to a waiver of time by the defense, and reset a pretrial hearing for August 24.
On August 24, 1998, the court continued the matter to September 29. On the latter date the court set the section 995 motion for an October 6 morning hearing, and set the remaining motions and pretrial hearing for the afternoon of October 6.
On September 29, 1998, the prosecution filed written opposition to appellants motions to strike the prior convictions, his motions in limine, and his motion to set aside the information.
On October 6, 1998, the court denied appellants motion to set aside the information, denied the motion for disclosure of peace officer records for failure to comply with statutory requirements, and ruled on the various in limine motions.
On November 4, 1998, appellant filed a new motion for disclosure of peace officer records (Evid. Code, § 1043). On November 20, 1998, appellant filed further motions in limine regarding trial evidence.
On November 23, 1998, the Tulare Police Department filed written opposition to appellants motion for disclosure of peace officer records.
On December 4, 1998, the court denied appellants motion for disclosure and ruled on the remaining in limine motions.
On December 28, 1998, appellant moved to dismiss the case due to prosecutorial misconduct or, in the alternative, for an order barring the testimony of Officer Furtaw.
On December 31, 1998, the prosecution filed written opposition to appellants motion to dismiss or bar testimony. On January 7, 1999, appellant filed a written reply to the prosecutions opposition.
On January 8, 1999, the court denied the motion to dismiss and ruled on several other in limine motions.
On February 8, 1999, the court granted the prosecutions motion for a continuance and set the matter for trial on April 7, 1999.
On April 7, 1999, the court vacated the jury and reset the matter for trial on June 9, 1999.
On June 7, 1999, the court continued the matter to September 29, 1999, for trial.
On September 29, 1999, the court vacated jury trial pursuant to a stipulation of the parties and continued the matter to November 3, 1999, for trial.
On November 1, 1999, the court vacated jury trial pursuant to a stipulation of the parties and continued the matter to February 2, 2000, for trial.
On January 31, 2000, the court granted a defense motion for a continuance following new discovery regarding fingerprints. The court also vacated the February 2, 2000, trial date.
On February 7, 2000, the court suspended criminal proceedings and ordered appellant certified to the superior court for a determination of his present sanity (§ 1368).
On February 10, 2000, the court appointed Stephen Bindler, Ph.D. as appellants medical examiner, directed Dr. Bindler to report to the court on February 28, 2000, and set a hearing on the report for March 1, 2000.
On March 1, 2000, the court noted the doctors report had not been filed and reset the hearing on the report for April 26, 2000. On April 26, 2000, the court reset the hearing on the report for May 19, 2000.
On May 19, 2000, the court conducted a hearing on the doctors report, found appellant legally able to stand trial, and reinstated criminal proceedings.
On July 17, 2000, the court continued the trial date to July 31, 2000.
On July 27, 2000, the court continued the trial date to September 7, 2000, on motion of the defense.
On September 7, 2000, the court continued the trial date to October 30, 2000.
On October 11, 2000, defense counsel filed motions to exclude an instruction on flight (CALJIC No. 2.52), to strike his prior convictions (§ 1385), and to exclude the testimony of Officer Furtaw, as well as various motions in limine.
On October 30, 2000, jury trial commenced in superior court. The court denied appellants motion to suppress evidence but granted his motion to bifurcate trial of the special allegations.
On November 1, 2000, the court denied appellants motion for acquittal (§ 1118.1). On the same date, the defense concluded the presentation of its case, the court instructed the jury following the argument of counsel, and the jurors retired to deliberate.
On November 2, 2000, the jurors reported they were unable to reach a unanimous verdict and the court declared a mistrial and dismissed the jury.
Third Trial
On December 11, 2000, the court confirmed a new jury trial date of March 19, 2001, over the objection of the prosecutor.
On March 16, 2001, the court continued the trial date to April 16, 2001, on motion of the defense.
On the same date, appellant moved to exclude evidence of his familys contacts with various witnesses and to exclude evidence of possession of a billy club in 1990. Appellant also filed a multi-part motion in limine and motion to exclude the flight instruction (CALJIC No. 2.52).
On April 16, 2001, the court ruled on the defense motions. On April 23, 2001, the court continued the trial to May 21, 2001. On May 18, 2001, the court continued the trial date to May 23, 2001.
On May 23, 2001, a jury was selected and sworn and the court adjourned the case until May 29, 2001. On May 29, 2001, the prosecution presented the case-in-chief and then rested. On June 4, 2001, the fifth day of trial, both sides rested and the jury heard the arguments of counsel.
On June 5, 2001, the court denied appellants motion for acquittal (& sect; 1118.1).
On the same date, the jury returned a verdict of guilty on the substantive count. Appellant waived a jury trial on the special allegations and admitted the truth of the allegations.
On August 8, 2001, appellant moved to strike his prior convictions (& sect; 1385). On August 17, 2001, appellant filed a second such motion.
On August 17, 2001, the prosecution filed a sentencing brief in opposition to the motion to strike prior convictions. On August 20, 2001, appellant filed a written response to the prosecutions sentencing brief.
On August 20, 2001, the court denied appellants motion to strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628. The court then denied appellant probation and sentenced him to a total term of 26 years to life in state prison. The court imposed the term of 25 years to life with possibility of parole on count I and a consecutive term of one year on the prior prison term. The court imposed a $ 1,000 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court also awarded 131 days of custody credits.
On September 27, 2001, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On November 8, 1996, appellant was staying at the Virginia Motor Lodge on South K Street in the City of Tulare. That morning, appellant and a companion began walking in a southerly direction along the outside of a fence. The fence was composed of upended pieces of corrugated sheet metal and bordered the western edge of the motel back parking lot. That portion of the fence was about six feet tall or higher and was located approximately 95 feet from the rear of the motel building. The fence also bordered the north and south edges of the motel property. At the southwest corner of the motel lot, a 19 1/4 inch opening in the fence allowed passage to and from the rear lot of the motel. The fence continued south along the western edge of the lot adjoining the motel lot.
At 9:45 a.m. on November 8, Police Officer Frank Furtaw was on patrol duty on South K Street in the City of Tulare. Furtaw pulled onto the road behind the motels on South K and saw the two men walking southbound along the Southern Pacific Railroad. He thought he recognized one of the men as Robert Simmons, a convicted felon and parolee. Furtaw passed to the west of the two men and definitely recognized Simmons. At that time, appellant and Simmons were about 30 feet from the opening in the fence and to the west and slightly north of the opening. Furtaw continued at a slow rate of speed about 30 yards beyond the two men, made a U-turn to the left, and observed appellant walk toward the opening in the fence. Furtaw drove north toward Simmons and stopped next to him. Simons was on the passenger side of the vehicle, between the vehicle and the fence. The fence was approximately 30 feet away and Simmons was positioned to the north of the fence opening.
Furtaw conceded he lost sight of both appellant and Simmons for a matter of seconds during his U-turn. He further acknowledged a "pretty good move" could have resulted in the pipe landing on the other side of the fence during the intervening seconds.
Furtaw spoke briefly to Simmons as he became suspicious after appellant walked away quickly. Simmons said he did not know anything about appellant or why appellant walked through the fence opening. Between 10 and 15 seconds after he starting talking to Simmons, Furtaw heard a loud bang against the corrugated fence. Furtaw got out of his patrol vehicle and walked through the opening in the fence. As he passed through the opening, Furtaw saw appellant about 15 feet away. Appellant was walking toward the officer at a fast pace and he said, "I didnt know you wanted to talk to me." Appellant appeared calm when he approached the officer. Furtaw looked around the area near the motel side of the fence looking for what could have made the banging sound and saw a black cylindrical object in the grass. The object was covered with black tape and was located several feet to the north of the opening and near the fence.
Furtaw picked up the object and determined it was a taped 10-inch, galvanized metal pipe with a cap on each end. Furtaw removed the tape from one end of the pipe, took off the cap, and noticed the pipe contained dirt. The surrounding grass was wet with condensation but the pipe itself was dry. Furtaw did not notice any marks on the tape inconsistent with the pipe hitting the fence. Furtaw asked appellant if the pipe belonged to him and appellant denied that it was his. Furtaw had never seen appellant in possession of the pipe and did not observe any unusual bulges on appellants person prior to making contact with him. Simmons said he observed appellant making the pipe in his motel room approximately three days earlier. According to Simmons, the motel room door was open at the time. Appellant filled the galvanized pipe with dirt, screwed on the end caps, and wrapped the pipe with electrical tape. Simmons said appellant made the pipe for his protection because he was having problems in the area. Simmons also told Furtaw he had heard the loud thump against the metal fence.
Furtaw arrested appellant for unlawful possession of a billy club (§ 12020, subd. (a)). David DePartee, a latent fingerprint analyst with the California Department of Justice Regional Crime Laboratory in Fresno, testified he examined the pipe and the electrical tape on the pipe for usable latent prints. DePartee did not find any usable prints on the pipe but did find one usable print on the adhesive side of the electrical tape. DePartee explained the print was initially placed on the non-adhesive side of the tape and was "picked up" by the adhesive side when another layer of tape went around the pipe. DePartee compared the latent print with appellants fingerprint card and determined the latent print was made by appellants left index finger. DePartee detected a second latent print on the tape. The print reflected a whorl pattern with two relatively clear ridge characteristics but DePartee said this information was insufficient for a reasonable fingerprint comparison. On cross-examination, DePartee acknowledged the presence of appellants fingerprint on the inside of the adhesive did not identify who possessed the pipe on November 8, 1996.
Joseph Brown, a Tulare County resident, testified he visited appellant at the Agri Center Motel in Tulare in June 1990. Brown described the motel as an establishment that rented rooms by the week or month. Brown went to appellants room and saw a "billy club" in the nightstand. Brown described the club as a 10-inch piece of one-half inch diameter galvanized pipe covered with "spongy bicycle grips on both ends." Brown said there appeared not to be anything inside the pipe at the time he found it. He kept the pipe and it was admitted into evidence at appellants trial. However, Brown had no personal knowledge as to who owned the pipe.
Defense
At the time of trial, Robert Simmons was serving a civil commitment at Atascadero State Hospital as a sexually violent predator. He had sustained one felony conviction for sodomy and three felony convictions for lewd and lascivious conduct with a child under the age of 14 years. However, he had not sustained any convictions or parole violations for possession of a billy club and did not carry weapons. Simmons acknowledged he was a candidate for punishment under the three strikes law in the event he sustained another felony conviction.
In November 1996, Simmons was living at the Virginia Lodge Motel on South K Street in Tulare. Simmons had previously testified that he had seen appellant with a pipe similar to the one Officer Furtaw found behind the fence. Simmons had also testified he watched appellant construct the pipe. Simmons did not see appellant with the pipe in November, but did say that appellant was wearing a jacket with hidden pockets. In a prior proceeding, Simmons testified that Furtaw did not make a U-turn before contacting him. Simmons did say he heard a bang on the other side of the metal fence when he was talking to Furtaw.
Jeff Blagg, a former defense investigator, interviewed Simmons on February 18, 1997. Simmons told Blagg he did not hang around with people who carried weapons or drugs because they could be stopped by police and lead to a violation of his parole. Simmons told Blagg he heard Furtaw tell appellant to walk back to the fence. Simmons said he heard a loud noise when something hit the fence. He also told Blagg he had watched appellant construct the pipe, filling it with dirt and wrapping it with black electrical tape.
Karen Sue Lee lived at the Virginia Motor Lodge in 1996 and 1997. Lee said she opened her door one morning and found appellant holding a 14- or 15-inch pipe in his hand. The pipe had the diameter of an egg and both ends were taped. She spoke to defense investigator Scott Dinkins and described the object as a "pipe bomb looking thing." She also told Dinkins the object was between 10 and 12 inches long and between one and two inches around. Lee also said she had seen the object the day before appellants arrest. Lee told Dinkins that Simmons said the pipe was his and he lied to police about it because Simmons did not want "to do the time." At the third trial, Lee denied making these statements to Dinkins.
Sonya M. was a 16-year-old ward of the California Youth Authority at the time of the third trial. She knew Simmons in 1996 and 1997 when she was 11 years old and living at the Virginia Motor Lodge. Sonya said Simmons "played with himself" in front of her on one occasion and would give her marijuana. On one occasion, she saw a 10-inch pipe wrapped with electrical tape in Simmonss room. On another occasion, she saw him carrying the pipe on the handlebars of his bike. Simmons testified he did not own a bike until March 1997. Sonya admitted the use of marijuana and methamphetamine when she was 11 years old. At one point, she and Janica M. ran away from the Virginia Motor Lodge and went to live with Dina Burch in a neighboring trailer park.
Sonya said appellants sister, Donna Bertao, was coming to her old neighborhood prior to the third trial to buy things for the children there. Dina Burch asked Sonya and Janica to testify at the trial. Sonya also said Burchs children had been offered money or clothes for testifying in court. The money went directly to Burch, who used some of it to buy Slushees for Sonya and Janica. Mrs. Bertao gave all of the children, including Sonya and Janica, tickets to the fair. She also bought schoolbooks and gift certificates to Mervyns. Bertao offered to pay for medication for Dina Burchs sick granddaughter. On one occasion, a defense investigator was interviewing Sonya with Janica and the investigator offered Janica money for her jacket. Another investigator bought Sonya lunch.
Janica M. was 19 years old at the time of third trial. She had been living with her mother at the Virginia Motor Lodge until she and Sonya ran away to live with Dina Burch at the trailer park. Janica was using marijuana and methamphetamine at the time she ran away. She met Robert Simmons in December 1996 or January 1997 and visited his motel room four or five times with Sonya. Simmons gave them marijuana and tried to engage Sonya in a sexually explicit conversation. Although Simmonss room was dark, Janica was able to see a black object that was 10-12 inches long. Janica used to see Simmons carry the object on the handlebars of his bicycle. Janica could not say for sure whether the object was a pipe and could not recall whether it was wrapped in tape. She described the object as black with a "nipple" on each end. Janica said the object was similar to a bike pump and could have been a bike pump, but she could not see that well in those days.
Janica said she had never seen appellants sister, Donna Bertao, but understood that she might receive tickets to the fair for testifying. Janica also anticipated she would receive money or clothing before testifying at the September 1997, proceeding. Before her testimony, Janica had a pizza lunch with Sonya, Dina Burch, and defense investigator Scott Dinkins. Janica did not borrow money from Dinkins but did sell her jacket for $ 10-$15 to him. Janica admitted using the money to buy street drugs.
In a prior proceeding, Dina Burch said she had seen Simmons in possession of 9-10-inch black pipe on about 10 occasions. Simmons was on foot on three of those occasions and was riding his bicycle on the remaining occasions. She described the pipe as a miniature "cops club." She said the pipe was smaller than a flashlight but heavy and crudely-made. After her testimony in September 1997, Dina Burch told Karen Lee that appellants family had given her some money.
Appellants older sister, Donna Bertao, testified appellant traveled from Clovis to Tulare on Friday, November 1, 1996, and rented a room at the Virginia Motor Lodge. Mrs. Bertao said she and her husband, Joseph, had suffered a family tragedy and appellant came to Tulare to support them. The next morning he went to Mrs. Bertaos place of business and spent the entire day with her. At about 9:00 p.m., Donna took appellant back to his room at the Virginia Motor Lodge. The following day, Sunday, November 3, Joe Bertao picked up appellant at the motel at about 9:00 a.m. and took him back to the family business. At about 9:00 p.m., Donna drove appellant back to the motel. Appellant was with Mrs. Bertao from 11:00 a.m. to 8:00 p.m. on November 4.
On the morning of Tuesday, November 5, 1996, Joe Bertao picked appellant up at the motel and appellant spent the day with the Bertaos. Donna had an inoperable radio at her place of business. Appellant asked Donna if he could borrow the radio to repair it. He also borrowed a screwdriver, wrench, and a roll of black electrical tape. Donna took appellant back to the motel at about 9:00 p.m. that day. On Wednesday, November 6, appellant arrived at Donnas store in the middle of the morning and she took him back to the Virginia Motor Lodge at about 9:00 p.m.
On Thursday, November 7, 1996, Joseph and Donna took a new J.C. Penney jacket to appellant at his motel. The Bertaos had purchased the jacket on November 4, because the weather was getting cooler and appellant needed a heavier garment. On the evening of November 7, the Bertaos noticed the broken radio was now working. Appellant showed Joe where he had repaired a short with the black electrical tape. The Bertaos had planned a one-week trip to Los Angeles beginning November 8. Joe Bertao said they were accompanying their son to the National Future Farmers of America Convention where the younger Bertao was to receive his American Farmer degree. Donna said appellant intended to join them at their home upon their return from the trip. When the Bertaos returned from the trip, they went through their accumulated mail and found a letter from appellant. In that letter, appellant stated he had been placed under arrest. The Bertaos bailed him out of jail and noticed a snag on the right shoulder of the new jacket. Joe Bertao said the snag was at about the same level as three nails on a pole near the opening of the corrugated metal fence behind appellants motel. The Bertaos never noticed anything suspicious in appellants room at the Virginia Motor Lodge and never noticed Robert Simmons on the premises.
Donna Bertao said appellant was disabled with rheumatoid arthritis. He shuffled in the mornings and could not rotate his neck because it was surgically fused. Charles H. Boniske, M.D., appellants treating rheumatologist, said appellant had suffered from joint and knee problems for 18 years. Dr. Boniske said appellant suffered from asymmetric polyarthritis and described it in his testimony:
"Its an inflammatory arthritis that Mr. Davis has. He has inflammation in his joints. They get swollen. He develops limited range of motion in several joints. His knees, specifically, were inflamed and basically were gushy, swollen."
Dr. Boniske said the 44-year-old appellant had limited flexion, or rotation, of his neck and had a large spur that limited his motion in the mid-cervical spine. Boniske described appellants condition as degenerative and said the inflammatory nature of his arthritis meant he had a lot of stiffness in the morning hours.
Donna Bertao denied giving anything to Dina Burch, Sonya M., or Janica M. to procure their testimony. In July 1997, Dina Burchs husband, Jimmy, approached Donna and Joe at the Virginia Motor Lodge. The Bertaos gave Jimmy Burch the name and address of appellants counsel as well as their own names and address. Toward the end of July 1997, Dina called Donna, explained she was raising her three grandchildren, and asked to borrow money for food. Defense investigator Scott Dinkins allowed Donna to take Dina about $ 40 worth of groceries. However, Donna did not give money to the Burches.
Dina Burch called Donna two or three weeks later and asked if the Bertaos had a garden and could spare any vegetables for the grandchildren. Dinkins again allowed Donna to give Dina some groceries. In addition, Donna gave $ 20 to Dinkins to buy lunch for the four defense witnesses during trial. The Bertaos purchased three County Fair wrist bands for the Burch children at a cost of $ 12 each. Donna did not intend that those wrist bands be given to Sonya M. or Janica M. In December 1997, the Bertaos "adopted" Dina Burchs family and another low-income family and provided them with Christmas trees and age-appropriate toys. Dina said each tree cost approximately $ 15 and the toys came from K-Mart or Wal-Mart.
In the beginning of 1998, Dina called Donna because one of her grandchildren was sick and she did not have money to pay for prescription medication. Donna called the pharmacy and paid for the medicine with her credit card. Donna said she was a volunteer with the Big Brothers/Big Sisters program. In the summer of 1998, she encouraged Dinas two older grandchildren to apply for a special program through Mervyns Stores. The program was designed for low-income children and provided each one with a $ 100 clothing shopping spree and a backpack full of school supplies. Donna said she gave Dinas grandchildren the application forms but had no control over whether they qualified for the program. Donna also said she did not supply the money for their sprees. However, upon request of the Big Brothers/Big Sisters director, Donna did transport Dinas older grandchildren to Mervyns to participate in the sprees.
Dennis Rhyman, Donnas cousin and a retired Visalia Police Officer, testified the Bertaos worked with needy families throughout the year and had a reputation in their community for being honest.
Rebuttal
Ralph Edwards, an investigator for the Tulare County District Attorneys Office, interviewed Sonya M. prior to her testimony at the third trial. According to Edwards, Sonya believed she was going to receive something in exchange for her testimony. Sonya said Dina Burch received and kept most of the money. She specifically recalled Donna Bertao giving $ 20 to Dina Burch. When Edwards interviewed Dina Burch, she said no one had given her any money, presents, or other items in exchange for her testimony.
DISCUSSION
I.
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE THAT
APPELLANT POSSESSED A SIMILAR TYPE OF METAL PIPE IN 1990
Appellant contends the trial court committed reversible evidentiary error by admitting evidence that he possessed a billy club in 1990.
Section 12020, subdivision (a), as charged in the instant case, states in relevant part:"(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:
"(1) Manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any . . . instrument or weapon of the kind commonly known as a blackjack, slungshot, billy . . . ."
Intent to use a weapon is not an element of the crime of weapon possession. Proof of possession alone is sufficient. However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence indicating that the possessor would use the object for a dangerous, not harmless, purpose. The evidence may be circumstantial and may be rebutted by the defendant with evidence of innocent usage. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1403-1406.)Appellant specifically argues:
"Here, the court admitted evidence of Appellants alleged possession of a billy club in 1990 in order to identify Appellant as the person who possessed the billy club in 1996. However, admissibility of evidence of uncharged misconduct to prove identity requires the `greatest degree of similarity. . . .
"The only similarity between the 1996 billy and the 1990 billy is that both were made from common stock pipe. The billy in the 1990 incident was a hollow stock pipe with bicycle handle grips at both ends. The 1990 billy was not filled with any material. The 1990 billy had no screw-on caps (or any other caps) on the ends. The 1996 billy was also a stock pipe; however, it was different in several significant respects. It was filled with dirt; it was wrapped with tape; it did not have any foam bicycle handlebar grips on it; it had screw-on caps on both ends. The only similarity is that both are stock pipes of similar length, but to the extent that this feature is common, it certainly is not so distinctive as to set the two offenses apart from the general variety of offenses chargeable under Penal Code section 12020, subdivision (a).
"At the hearing to exclude evidence of Appellants alleged possession of a billy in 1990, the court heard evidence that two experienced police officers had seen dozens of billies made of stock pipe, usually threaded on both ends, sometimes capped, sometimes not capped, sometimes wrapped with tape, sometimes not wrapped with tape. The court nevertheless admitted evidence that Appellant allegedly possessed a billy in 1990, because it had some `striking similar characteristics to it. The court failed, however, to identify what `striking similar characteristics of the 1990 billy would distinguish it from the garden-variety billies so common in the criminal world, or which `striking similar characteristics of the 1990 billy were shared with the 1996 billy, or which `striking similar characteristics of the 1990 billy would be so unusual and distinctive as to be like Appellants signature. [P] . . . [P]
"There is simply nothing about Appellants alleged possession of a billy in 1990 that warranted admission of evidence of the 1990 incident except to show that Appellant had a propensity to possess a billy. This inference is `precisely the kind of character trait that may not be proven under Evidence Code section 1101. (People v. Felix (1993) 14 Cal.App.4th 997, 1005-1006.) The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevance can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible. (People v. Thompson [(1980)] 27 Cal.3d 303, 316, 165 Cal. Rptr. 289, 611 P.2d 883.)"
Evidence Code section 1101, subdivision (b) states in relevant part:
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. The similarity, considering the degree of similarity and the number of common marks, should amount to a signature. (People v. Catlin (2001) 26 Cal.4th 81, 111.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. The least degree of similarity is required to establish relevance on the issue of intent. For this purpose, the uncharged crimes need only be sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same intent in each instance. Nevertheless, evidence of uncharged misconduct is so prejudicial that its admission requires extremely careful analysis. To be admissible, such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. Thus, the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. On appeal, a trial courts ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)
On April 16, 2001, appellant moved in limine to exclude evidence of the 1990 billy club. After hearing the arguments of counsel, the court denied the motion, stating:"Im not changing my mind, nevertheless. Im not going to go through the whole thing. I think Ive already explained why I admitted it before, and I will do it again for the same reason so were past that point. [P] . . . [P] My rulings from the two prior trials on this issue specifically are incorporated, so I dont have to go back through the whole thing."
On October 6, 1998, the court ruled:
"Perhaps its a semantical difference, but the way I see it identity is the issue. Who committed the crime, was it Mr. Davis or was it Mr. Simmons or somebody else that left it there? So I think the evidence, as I concluded in the earlier trial, [] is extremely relevant. If it was a billy club of a type that was completely dissimilar to the one in this case that would be something the Court could strongly consider. As it turns out, it has some very striking similar characteristics to it. Its certainly prejudicial, theres no question about that in the sense that, of course, it is highly relevant. Weighing it all out, I conclude, as I did before, that it is properly admissible and will be admitted in the trial in this case that we are next going to do unless something odd happens in the meantime, something different."
The parties have not cited and we have been unable to find in the record the superior courts stated reasons for admitting evidence of the 1990 billy club in the first trial.
At the December 4, 1998, hearing on motions in limine, the prosecutor urged the trial court to admit evidence of the 1990 billy club because identity was the main issue in the case. The court ruled:"Well, identity apparently is a word with some semantical difficulties. `Identity, to me, means more than picking somebody out of a lineup. It means the identification of the perpetrator of the crime, that is, who committed the crime. And its with that understanding that I have previously indicated that the other billy club would be admitted. [P] I still am ruling that it will be admitted. I do not think that its too remote. I think its highly relevant. I think there are some similarities as well that are crucial, and its for that reason that it will be admitted."
The court ultimately instructed the jury in CALJIC No. 2.50 (evidence of other crimes) as follows:"Evidence has been introduced for the purpose of showing the defendant committed a crime other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the identity of a person that committed the crime, if any, of which the defendant is accused. [P] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose."
On appeal, appellant contends, among other things: (1) identity was not at issue in the trial because the crime did not occur; (2) the 1990 incident was not probative of the 1996 incident because the two billys were dissimilar and because the earlier incident was remote in time; (3) the prejudice inherent in the 1990 incident greatly outweighed whatever probative value it may have had with respect to the 1996 incident; and (4) as a result, the jury tended to disbelieve the evidence in appellants favor. Appellant claims such favorable evidence includes the facts that Simmons was a three-time loser who risked life in prison for possession of the 1996 billy, that Simmons told Karen Lee the billy was his, that Simmons lied to Officer Furtaw, and that Janica M., Sonya M., and Dina Burch all saw Simmons with a pipe similar to the 1996 billy.Evidence Code section 353 states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
In the instant case, David DePartee testified he was a latent print analyst with the California Department of Justice Regional Crime Laboratory in Fresno. DePartee said the laboratory received fingerprint cards for appellant and Simmons and a metal pipe wrapped in black tape in April 1999. DePartee said he unraveled the tape from the metal pipe and processed both the tape and the pipe with Super Glue fumes. He then applied a dye stain to those items and examined them under a laser to determine if there were any fingerprints present. DePartee said he processed both the adhesive and nonadhesive sides of the tape. He did not find any fingerprints on the galvanized pipe. However, he did find a "mirror image" latent print on the adhesive side of the tape. DePartee explained, "The only way that that could have occurred is if this latent print had been put down onto a surface and then the electrical tape go over that surface and actually lift it off that surface and then I developed it on the adhesive side giving that mirror image orientation." He further testified:"Well, in my notes, I wrote down that this was from the midsection of that pipe, meaning not on the end caps, and since there were multiple layers of tape and since the tape had to actually have lifted off probably another layer of tape, there would have to be at least one layer of tape for that next layer of tape to lift off this latent print. So its within the midsection and it would have to be at least one layer up from the actual galvanized pipe."
From the placement of the print, DePartee concluded:
"There would have to be at least one layer or one revolution of tape put down onto this item with the print on the non-sticky side for that next piece coming over to attach to it and lift it off that top layer. [P] . . . [P]
"There would have to be at least one layer over in order for this print to be on the sticky side of that tape, so it would not be on the exterior of this item [the pipe] . . . ."He ultimately concluded that "latent print B," the mirror image print on the tape, was made by the appellants left index finger.
California courts have held that evidence of a fingerprint, palm print, or footprint left inside a structure or at a point of unusual access are alone sufficient to support a burglary conviction. (People v. Bailes (1982) 129 Cal. App. 3d 265, 282, 180 Cal. Rptr. 792.) Fingerprint evidence is the strongest evidence of identity and is ordinarily sufficient alone to identify the defendant. The jury is entitled to draw its own inferences as to how the defendants prints came to be on a surface and to weigh the evidence and opinion of fingerprint experts. (People v. Gardner (1969) 71 Cal.2d 843, 849, 79 Cal. Rptr. 743, 457 P.2d 575; People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587-1588.) The Government need not negate all inferences consistent with innocence that could arise from the fingerprints in question. (People v. Preciado (1991) 233 Cal. App. 3d 1244, 1247, 285 Cal. Rptr. 22.)
Here, appellant emphasizes the allegedly prejudicial nature of the 1990 billy without fully appreciating the damning evidentiary impact of the 1996 pipe. Between 10 and 15 seconds after he started talking to Robert Simmons on the road behind the South K Street motels, Officer Frank Furtaw heard a loud bang against the corrugated metal fence. Furtaw got out of his patrol car and walked through the opening in the fence. He stepped a foot or two into the fenced area and saw appellant walking toward him at a fast pace. Furtaw went to the area where he heard the bang against the fence and located a black pipe on top of the grass next to the fence. The grass was wet with condensation but the pipe was dry. David DePartee analyzed the pipe for latent prints and found a print from appellants left index finger on the black electrical tape that covered the capped pipe. Based on its positioning, the fingerprint was not on the exterior of the taped pipe nor was it on the galvanized metal tube. Rather, the print was at least one taped layer up from the galvanized metal tube and was covered by at least one revolution of electrical tape. From these facts, the jury could reasonably conclude the print was not left by appellant casually picking up a seemingly abandoned object behind the metal fence. Rather, the location of the fingerprint on the tape, combined with the dry exterior of the pipe against the wet grass, strongly suggested that appellant prepared and possessed the taped pipe and then abandoned the object in a vain effort to evade detection.
Given the fact that fingerprint evidence is the strongest evidence of identity under California law, is not reasonably probable a result more favorable to appellant would have been reached had the court excluded evidence of the 1990 billy club.
II.
THE TRIAL COURT PROPERLY ALLOWED THE PROSECUTOR TO
CROSS-EXAMINE DEFENSE WITNESSES ON THEIR POTENTIAL BIAS
Appellant contends the trial court committed reversible error by admitting testimony about the interactions of appellants sister and brother-in-law with various defense witnesses.Evidence Code section 210 states:
"Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
Evidence Code section 780 states in relevant part:
"Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [P] ... [P]
"(f) The existence or nonexistence of a bias, interest, or other motive."
The state of mind of a witness as to bias prejudice, interest involved, and hostility or friendship toward parties litigant are all subjects for investigation in the trial of a case. (People v. Payton (1939) 36 Cal. App. 2d 41, 55, 96 P.2d 991.) Wide latitude should be allowed counsel in developing facts which show bias, prejudice, or interest on the part of a witness and which therefore affect the credibility of the witness. (People v. Avelar (1961) 193 Cal. App. 2d 631, 634, 14 Cal. Rptr. 520.) The state of mind of a witness as to his or her interests involved and his or her hostility or friendship toward the parties are always proper matters for investigation, that truth may prevail and falsehood find its proper level. On cross-examination, it is permissible to show the fact of relationship, fraternal or otherwise, existing between the witness and the party in whose interest he or she is called, as tending to affect his or her credibility. (People v. Pickens (1923) 61 Cal.App. 405, 408, 214 P. 1027.)Appellant contends here:
"During the trial, the prosecution elicited testimony from certain witnesses regarding [the] purported interactions of Appellants sister and brother-in-law, Donna and Joseph Bertao. Despite defense counsels objections, the court allowed the prosecution to ask questions which were irrelevant, misleading, and prejudicial. Further, the court allowed the witnesses to testify to inadmissible, irrelevant and prejudicial facts. The effect of this testimony was to cause the jury to infer that if Appellants sister and brother-in-law (the Bertaos) interacted with these witnesses during the first trial in September 1997 and/or prior to the second trial in October 2000, then (1) the Bertaos believed that Appellant was guilty and were desperately trying to influence the witnesses; (2) the witnesses were influenced not to tell the truth; and (3) Appellant himself must have been involved in this interaction, albeit behind the scenes. Each of these inferences is false. Each of these inferences was prejudicial to Appellants right to a fair trial."Facts Relating to Witness Dina Burch
Prior to the first trial in September 1997, the Bertaos met Dina Burchs husband, Jimmy, while the Bertaos were taking pictures and measurements in the area of the incident. Joe Bertao asked Jimmy if he knew Robert Simmons. When Burch said he knew Simmons, the Bertaos gave him their telephone number and that of appellants trial counsel. Prior to the first trial, Dina Burch called the Bertaos and asked for grocery money. The Bertoas declined, consulted with defense counsels investigator, and then purchased two boxes of groceries on separate occasions and took the groceries to the Burch residence.
A short time after the first trial, the Bertaos bought wristbands for several needy children to attend the county fair. The wristbands cost about $ 12 each and the three Burch grandchildren were among those who received them. In early 1998, the Bertaos suggested that the older two grandchildren participate in a back-to-school shopping spree sponsored by a local chapter of Big Brothers/Big Sisters. The Bertaos gave application forms for the two grandchildren to complete but did not give them money. The spree took place in the summer of 1998 and Donna Bertao drove the two grandchildren to the Mervyns store. However, she did not shop with them or provide money for their sprees. Mervyns provided a $ 100 gift certificate for each child to buy merchandise at the store.
In December of that year, the Bertaos "adopted" two needy families for the holidays. The Burch family was one of the two adoptees. The Bertaos bought the Burch grandchildren some food, a Christmas tree, and some gifts. In early 1998, Dina Burch called Donna Bertao at home and asked if she could pay for a grandchilds prescription. Bertao granted the requested and called in her credit card number to the pharmacy. During the first trial, Burch, Janica M., and Sonya M. all testified on the same day. At lunchtime, Joe Bertao gave $ 20 to defense counsels investigator at the latters request. The investigator then took the money and bought the three witnesses lunch.
Facts Relating to Sonya M.
Prior to the first trial, Sonya told a defense investigator that Simmons had a pipe. Prior to the third trial, Sonya told a prosecution investigator that Simmons had a pipe. During the third trial, Sonya testified her previous statements about Simmons and the pipe were truthful. She said she would not lie for appellant and did not even know him. Sonya said she was never given or promised anything in exchange for her testimony. Sonya emphasized she saw Simmons with a pipe wrapped in black tape. She saw him with the pipe while he was on his bicycle and when he was in his room. Sonya also said the pipe in Simmonss possession looked like the one appellant was charged with possessing.
The following exchange occurred on cross-examination of Sonya during the defense case:"Q [by Deputy District Attorney Smith] Okay. When you were over living with Dina Burch, did she come and talk to you about this pipe that were talking about today?
"A [by Sonya] Yes.
"Q Now, did she also tell you, did Dina Burch tell you that she wanted you to testify as a witness?
"A ... Yeah, she asked me to.
"Q And she told you that if you testified in court you would get certain things from this lady that youve been talking about, right?
"A I dont think she said I would get things, but later on things just started coming.
"Q Okay. So . . . you were offered some money or some clothes for testifying in court?
"A The kids were.
"Q Okay. The kids being Dinas kids?
"A Dinas kids.
"Q And so when my investigator back in December of 2000 asked if while you were at Dinas house another lady came over there and offered you guys some money or some clothes for testifying in court, your answer was yes.
"A Yes.
"Q And do you know this ladys name?
"A Donna.
"Q ... Was it Donna Bertao?
"A I didnt know. Just Donna.
"Q Did you later find out that this woman named Donna was Mr. Davis sister?
"A Yes. [P] . . . [P]
"Q And how much money did she pay you?
"A She paid me nothing. She paid Dina. She gave it all to Dina. Dina would go buy us slushees. Im not sure if she bought slushees or Dina bought the slushees. I think she bought the slushees. Dina, I dont know what she would do with the money, but she came by and gave us money. [P] . . . [P]
"Q Did you observe [Dina] tell Donna, well all come to court for you?
"A No. [P] . . . [P]
"Q Did Donna provide you with tickets to go to the fair?
"A I think - yeah.
"Q School books? Notebooks?
"A School books, yeah.
"Q Were you offered a gift certificate at Mervyns?
"A Yeah."Facts Relating to Janica M.
Prior to the third trial, Janica told a prosecution investigator she had seen Simmons with a pipe and never received anything for her testimony. During the defense case in the third trial, Janica said she was being truthful when she previously said she saw Simmons with a pipe, that she never knew appellant aside from seeing him in court, that she had no reason to help him, and that she had received nothing for her testimony.On cross-examination, the following exchange occurred:
"Q [by Deputy District Attorney Smith] . . . Now, you also told . . . the district attorney investigator who came to see you in November of 2000, that when you were interviewed by [defense investigator] Scott Dinkens, he provided you with pizza; is that right?
"A [Janica] Yes.
"Q And that also at some point in time after the interview was over, he gave you money for a jacket that you had?
"A Yes.
"Q Did you ask him for that money, or did you say, `I need some money. Can you give me some money?
"A No. I was joking around . . . and I asked him, `Hey, you want to buy this jacket? I didnt ask him for any money or anything like that.
"Q So he offered to buy your jacket from you for $ 10?
"A Yeah, 10 or 15. Im not sure.
"Q It was worth more than that?
"A Yes.
"Q Did you take that money and go out and buy drugs with that?
"A Yes.
"Q Did he buy anything else from you?
"A No.
"Q Did he give you anything else at that time, other than pizza and money, for your jacket?
"A No.
"Q Now, was that before you went to court to testify?
"A Yes.
"Q Okay. So you hadnt testified yet at this point when you were interviewed in July of 1997, right?
"A Correct. I think we went to court in September. [P] . . . [P]
"Q Did Mr. Dinkens give anything to [Sonya], any money or anything of that nature?
"A Not that I know of.
"Q Now, you also indicated yesterday that you were given some things prior to your testimony; is that right?
"A What do you mean?
"Q Or did you anticipate that you would receive some money or clothes or something like that prior to testifying?
"A Yeah. [P] . . . [P]
"Q Was there an understanding that you might receive tickets to the fair, without telling us what Dina told you?
"A Yes.
"Q And that you might receive some money or some notebooks or clothing from Mervyns?
"A Yes.
"Q And that was prior to you testifying at the September 97 hearing?
"A Yes.
"Q So you never ever personally saw Donna Bertao; is that right?
"A Right."
Appellant submits the prosecutors cross-examination painted the Bertaos in a false light as witness tamperers, confused the jury, delayed the trial, and made appellant look like he was "somehow involved in a desperate attempt to subvert the truth." Under California law, it is proper cross-examination of a witness to show bias, prejudice, interest, hostility, or friendship toward a party by showing the witness cherished a friendly interest in appellant which would bear upon the question of the credibility of his or her testimony. (People v. De Leon (1968) 260 Cal. App. 2d 143, 156, 67 Cal. Rptr. 45, disapproved on another point in People v. De Santiago (1969) 71 Cal.2d 18, 28, fn. 7, 76 Cal. Rptr. 809, 453 P.2d 353.) Moreover, under Evidence Code section 780 there is no specific limitation on the use impeaching evidence on the ground that it is "collateral" in nature. The admission of such evidence is not discretionary with the court. (People v. Eisenberg (1968) 266 Cal. App. 2d 606, 615, 72 Cal. Rptr. 390.)
Here, the provision of money and goods prior to the testimony of Dina Burch, Sonya M., and Janica M. suggested a potential bias in favor of the defense and was clearly relevant to the credibility of the witnesses. Although appellant suggests the evidence adduced on cross-examination was "misleading," the defense had a full opportunity for further examination of the witnesses upon redirect. Appellant further claims the trial court should have excluded the cross-examination under Evidence Code section 352 as it was prejudicial, i.e. that it "cast a shadow over Appellants own character and evoked an emotional and unjustified bias against him." As the People point out, Robert Simmons testified that he saw appellant with the metal pipe three days before their encounter with Officer Furtaw. The defense presented the testimony of Dina Burch, Janica M., and Sonya M. to discredit Simmons. The Evidence Code clearly permitted the jury to consider the existence or nonexistence of a bias, interest, or other motive when evaluating the credibility of Burch, Janica, and Sonya. (Evid. Code, § 780, subd. (f).)
Moreover, the concept of "undue prejudice" within the meaning of Evidence Code section 352, is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial under section 352 merely because it undermines the opponents position or shores up that of the proponent. "Undue prejudice" applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. Evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. (People v. Branch (2001) 91 Cal.App.4th 274, 286.) Here, the trial court properly exercised its wide discretion and allowed cross-examination of the witnesses to determine the existence of a bias or interest affecting their credibility. Such evidentiary rulings simply did not amount to "undue prejudice" under all of the facts and circumstances of the case.
Appellant lastly contends the prosecutor engaged in misconduct by asking questions that were not in good faith. To preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.) A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820, 952 P.2d 673.) At the April 16, 2001, hearing on in limine motions, appellants counsel claimed an inquiry into the alleged bias of Janica and Sonya would be prejudicial because they told the truth to the district attorneys investigator and stood by their statements. The trial court ruled:"... So we have witnesses who will be testifying for the defense who have, in some way, allegedly received some favor from the defendants sister. I have to presume from what Im saying right now . . . that they knew the connection, knew the connection. Seems to me thats bias, interest, or other motive. You get a Slurpee from somebody, sure it doesnt count for much, but it was something given to you by somebody thats connected to the defendant. Or if you got money for school books, thats something given to you and has at least the potential for influencing your testimony. Its not Ms. Bertao out there buying somebodys false testimony, that does not rise to that level, but I think in terms of bias, interest, or other motive, its there.
"Im certainly not inclined to let somebody else say what they think somebody else got. Were talking about direct observation. If somebody saw Ms. Bertao hand Ms. Birch, you know, a $ 50 bill for whatever it was, school or some other apparently innocent purpose, I think that is going to be admissible to the extent that Mrs. Bertao has to get up and say why she did that, fine.
"In fact, if she testifies, it would probably be legitimate to ask her, `Didnt you go out and talk to these girls that you know are witnesses in this case? And she can say, `Yes, I did, or `No, I didnt give them anything, or `Yes, I gave them something because I felt sorry for them, or whatever. I think its admissible. I dont see it as being the biggest issue. I mean, of course its prejudicial. All evidence like that is prejudicial. Not inclined to even think a little bit that that fits in the category of buying false testimony. Theres nothing in there - those statements by the DAs investigator that would lead anybody to believe that."
The prosecutors subsequent cross-examination of the witnesses was consistent with the trial courts in limine ruling and we simply cannot say the questions amounted to prosecutorial misconduct, i.e., the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ayala (2000) 23 Cal.4th 225, 284.) Appellants claim of prosecutorial misconduct must be rejected.
III.
CALJIC NO. 17.41.1
Appellant contends CALJIC No. 17.41.1 (juror misconduct) violated his right to a fair trial and amounted to "structural error requiring reversal."He specifically argues:
"... The instruction threatens to interfere with the jurys independent deliberations thereby depriving the defendant of the Sixth Amendment right to a fair trial. Although the instruction does not explicitly threaten to punish a juror who refuses to follow the law, the fact it leaves the consequences of doing so unstated may well serve as an even stronger deterrent to jury nullification. But the cost of that deterrent may be to stifle free and open discussion and expression of ideas, especially unpopular ones, during deliberations. Some jurors may feel intimidated by the knowledge their comments, suggestions and ideas may be reported to the judge and may even become public. This could lead jurors to suppress or edit their opinions to ensure they are being `politically correct and to avoid coming to the attention of the court. Furthermore, the jurors in the majority may use the instruction as leverage against those in the minority by threatening to report them to the trial court as `nullifiers if they do not change their position on the verdict. At the very least, the requirement jurors report to the court their fellow jurors whom they believe intend to disregard the law increases the likelihood of dissension among the jurors. Turning jurors into `snitches can only exacerbate the misunderstandings, mistrust, rivalries and tensions which commonly arise during deliberations. There is a thin line between refusal to deliberate, refusal to follow the law and being unpersuaded by the prosecutors evidence. It is sometimes difficult for a trial judge, much less lay jurors, to determine which one of these is the true state of affairs in any given deliberation. Absent the `snitch provision in CALJIC No. 17.41.1 the jurors probably would be more likely to try to work out their differences in the jury room. But CALJIC No. 17.41.1 encourages frustrated jurors to manufacture misconduct by holdouts in order to end a stalemate."
CALJIC No. 17.41.1, as read to the jury, states:
"The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
A juror who does not follow the courts instructions on the law is subject to discharge for inability to perform his or her duties as a juror. (§ 1089; People v. Williams (2001) 25 Cal.4th 441, 463.) Instruction with CALJIC No. 17.41.1 neither violates the constitutional right to trial by jury nor violates the constitutional right to due process by arbitrarily depriving the accused of a state law entitlement. (People v. Engelman (2002) 28 Cal.4th 436, 449.) Appellant cites nothing from the record to show the instruction actually interfered with the jurys deliberative process. (See Cal. Rules of Court, rule 14(a)(1)(C).) On that record, we reject his entire argument as conjectural and hold error, if any, in instructing in CALJIC No. 17.41.1 was harmless beyond a reasonable doubt. (People v. Molina (2000) 82 Cal.App.4th 1329, 1332, 1335-1336; Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824.)
IV.
CRUEL AND UNUSUAL PUNISHMENT
Appellant contends his three strikes sentence was cruel and unusual and violated the United States and California Constitutions.
The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article I, section 17 of the California Constitution states: "Cruel or unusual punishment may not be inflicted or excessive fines imposed."
In Ewing v. California (2003) _____ U.S. _____ [123 S. Ct. 1179, 1190], the United States Supreme Court held a sentence of 25 years to life in prison, imposed upon an ex-felon for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and does not violate the Eighth Amendments prohibition on cruel and unusual punishments.
California courts construe the state constitutional guarantee against cruel and unusual punishment separately from its federal counterpart. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1136.) A criminal defendant bears a considerable burden to prove the sentence imposed is unconstitutional. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661-1662.) Moreover, such challenges are rarely successful. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) In People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433, review denied October 2, 2002, Division Two of the Court Appeal, Fourth Appellate District held an ex-felons sentence of 25 years to life, under the three strikes law, for stealing a magazine did not constitute cruel and unusual punishment in violation of the California Constitution. The court stated in relevant part:"In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis... First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." ... Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) [P] . . . [P]
As a general matter, the punishment imposed by Californias three strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (People v. Cluff (2001) 87 Cal.App.4th 991, 997.)
"Defendants punishment was imposed because of his recidivism. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) `Society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time.... (People v. Martinez (1999) 71 Cal.App.4th 1502, 1515 . . .. [P] . . .
"The second prong of the . . . analysis involves a comparison of the `challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. (People v. Thongvilay, supra, 62 Cal.App.4th at p. 88.) . . . `However, as the court pointed out in People v. Ayon (1996) 46 Cal.App.4th 385, 400, this step is inapposite to three strikes sentencing because it is a defendants "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his `offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons."... (People v. Cline, supra, 60 Cal.App.4th 1327, 1338.)
"As for the third prong, defendants interjurisdictional comparison demonstrates that Californias Three Strikes law is among the most severe recidivist schemes in the nation. `That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require "conforming our Penal Code to the `majority rule or the least common denominator of penalties nationwide." . . . Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
"Defendants sentence of 25 years to life, under Californias recidivist statute, for felony petty theft does not constitute cruel or unusual punishment." (People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433.)
In the instant case, appellant does not dispute the third prong of analysis and, pursuant to the recent case of Romero, the second prong must be deemed inapposite. Therefore, the remaining point of contention is the first prong of analysis, i.e., the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Appellants criminal record consisted of the following offenses:
Date of Conviction Offense April 30, 1973 Making annoying telephone calls (§ 653,) May 7, 1974 Burglary (§ 459) October 29, 1974 Joy riding (§ 499) July 26, 1977 Battery (§ 242) January 5, 1978 Forcible rape (§ 261, subd. (2)) May 5, 1978 Parole violation May 15, 1981 Parole violation October 8, 1986 Assault with a deadly weapon (§ 245, subd. (a)(2)) September 28, 1990 Willful infliction of corporal injury (§ 273.5) and False imprisonment (§ 236).
With respect to the January 1978 conviction, the then-22-year-old appellant broke into a residence occupied by an 82-year-old female with the intent to commit burglary. He entered the womans residence at 4:00 a.m. on May 5, 1976, by removing a screen and unlocking a door. The elderly victim awakened and found appellant lying on top of her. Appellant pinned the victims arms above her head and vaginally raped her for approximately 20 minutes. Appellant warned her not to scream or tell anyone and then he fled the residence.
With respect to the October 1986 conviction, appellant pointed a .38-caliber revolver at his girlfriend and her aunt. Appellant threatened the lives of both women. The girlfriend was in her aunts car when appellant said, "Get out of this car right now or Ill pull the trigger." Appellant then pointed the gun in the aunts face and told his girlfriend, "I dont know who she is, but Id just as soon pull the trigger on her as you."
With respect to the September 1990 convictions, appellant physically attacked his live-in girlfriend. When the victim refused appellants sexual advances, he became angry, yelled at her, and jumped on top of her as she sat on the bed in their residence. He then proceeded to slap and hit her for about five minutes. When the victim attempted to leave, appellant prevented her from doing so. He told the victim, " I havent decided yet whether to let you leave and live or leave you here and let you die." The victim sustained two black eyes, bruises and scratches to her face and head, and had small sections of hair missing.
Against the foregoing criminal history, appellant points to a list of commendable personal accomplishments since his release from state prison in 1992 as well as 22 character letters that friends and family members submitted to the sentencing court on his behalf. Nevertheless, the trial court observed at sentencing:"Mr. Davis criminal history goes to 1990, and then he was in prison in 1996, showing that he had not reformed himself. He descended into committing yet another crime, carrying a deadly weapon, proving that, at least in November of 1996, he still hadnt gotten the message. The details of crimes for which Mr. Davis was convicted of in the past reveal an extremely dangerous, callous, violent person who is willing to hurt people badly to satisfy his own wants.
"The record should be clear that after, I think, it was after the aborted attempt to try this matter for the third time, the Court made an offer that if he pled, he would get six years. I made that offer because I was not real happy with the fingerprint experts testimony in the second trial. I thought that it would be better to save everybody the third and a half trial that we were going to embark on.
"I will say now that when I made that offer, I was not aware of all the tremendous, horrible details of the crimes for which Mr. Davis was convicted, and Ill represent that if I had made that offer, if he had accepted that offer, and if we were here today talking about whether the offer should remain in place, the answer would be no because now Ive found out a lot more about Mr. Davis and what he was doing to people for a long time.
"Three Strikes Law is a law thats designed to incarcerate people who are dangerous and have committed serious crimes in our society and to protect society. Mr. Davis presents himself as changed and deserving of mercy. Its up to me to evaluate and decide if that change has, in fact, occurred and whether its genuine and real and whether society would be safe if Mr. Davis was turned loose in it.
"All I can say in that regard is that Ive been working in the criminal justice system for 33 and a half years. . . . I believe I do know when people are genuinely rehabilitated. I dont think Mr. Davis is, not withstanding everything that I have heard. I dont believe his transformation is real. I think that he is still that mean spirited, dangerous person under all of the facade of change that has been presented."
In view of the trial courts detailed analysis of such factors as age, prior criminality, personal characteristics, and state of mind, we cannot say the punishment imposed was grossly disproportionate to appellants individual culpability. Expressed another way, appellants sentence of 25 years to life, under the three strikes law, for possession of a billy club, did not constitute cruel and unusual punishment in violation of the California Constitution.
V.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN SENTENCING
APPELLANT
Appellant contends the sentencing court abused its discretion in refusing to strike his prior felony convictions.He specifically argues:
"... Here, Appellants present conviction was for a non-violent, passive crime that occurred in broad daylight and could have been charged as a misdemeanor. Appellant had made extraordinary progress since his 1990 conviction, and had indeed become an inspiration to the community. Two of Appellants strike priors are from 1978. Appellant was not on parole or probation at the time of the charged offense in November 1996. Appellant had no parole violations since 1990. He is highly unlikely ever to offend again, he will be in his fifties after release from a seven year prison term, he has the strongest support of his family and the community. These factors most certainly provided more than preponderant weight to dismiss Appellants prior strikes, yet the court simply refused to do so. This was an irrational and arbitrary ruling...
"Indeed, besides virtually ignoring substantial evidence in favor of Appellants remarkable socialization and excellent character, the court considered inadmissible and extremely prejudicial evidence. Five relatives of the victim of a 1976 rape committed by Defendant signed a victim impact statement which was included in the prosecutions sentencing brief and considered by the court in sentencing Appellant to 26 years. It was error for the court to consider that statement, as Penal Code section 1191.1 only allows statements of victims or next of kin of deceased victims of the crime for which a defendant is being sentenced. It was also error to consider the statement because the statement was highly prejudicial and admitted in violation of Evidence Code section 352. The victim impact statement here concerned a crime which Appellant committed in 1976 and for which he was sentenced in 1978. The statement included such terms about Appellant as `vicious, violent, anti-social, and `predisposition to use unlawful violence. None of the signatories acknowledged ever having met Appellant or that they knew anything at all about his character aside from the effect that his offense had on their relative in 1976. This statement was merely a vitriolic outburst against the perpetrator of a crime in 1976. In addition, the court also considered the portion of the victim impact statement which mentioned that a search of Appellants home pursuant to the 1976 rape produced a battery operated dildo and a rubber penis ring. This information was completely unrelated to any past or present criminal activity, was highly personal and private and was irrelevant to the sentencing proceeding. The fact that the court considered the inadmissible and highly prejudicial victim impact statement regarding an offense committed 25 years prior to the sentencing for the present offense, and the fact that the court also considered evidence of Appellants possession in 1976 of certain sexual objects, which information was unsubstantiated and private and irrelevant to the sentencing, further prejudiced Appellant during the sentencing proceeding. The courts consideration of this inadmissible, very old and highly inflammatory information further clouded the courts reasoning and contributed to the courts prejudicial refusal to consider the unrebutted-and far more meaningful-evidence of Appellants extraordinary feat of self-realization and socialization." (Fn. omitted.)
Section 1385, subdivision (a) states:
"The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading."
Trial courts retain the power to dismiss prior strikes in the interest of justice under section 1385. In exercising their discretion under section 1385, trial courts must consider both the defendants constitutional rights and societys interests, as represented by the People. This requires the court to consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Romero, supra, 99 Cal.App.4th at pp. 1433-1434; People v. Garcia (1999) 20 Cal.4th 490, 497-499, 976 P.2d 831.)
A trial courts decision to strike prior felony convictions is subject to review under the deferential abuse of discretion standard. Under that standard, an appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. Under California law, it is not enough to show that reasonable people might disagree about whether to strike one or more of defendants prior convictions. Where the record demonstrates the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. (People v. Zichwic (2001) 94 Cal.App.4th 944, 959-961.)
A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence. To be sufficient, evidence must be "substantial." Evidence is substantial only if it reasonably inspires confidence and is of solid value. By definition, "substantial evidence" requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred. A reasonable inference, however, may not be based on suspicion alone or on imagination, speculation, supposition, surmise, conjecture, or guess work. A finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities without evidence. (People v. Cluff, supra, 87 Cal.App.4th at p. 1002.)
In issue IV, ante, we set forth in substantial detail the trial courts remarks at sentencing. The court prefaced those remarks in the following manner:"Many years I have worked with this case and struggled through three trials and part of another one, and often wondered if one day I would be presented with the task that I have now. The decisions that are made in this case are one, the jury, and two, by myself. All I can say is that I have given this tremendous consideration, worried about it, thought about it, considered it, gone over it. It has been, in essence, a part of my life for as long as Ive had this case.
"I make the following comments in reaching the conclusion I reach, simply doing what Im supposed to do, which is applying the law and being as fair as I can possibly be.
"Defendants history is one of tremendous violence and threats of violence. I dont think theres any question about that. The rape of an 82-year-old woman about which he strangely, oddly, bragged to another person and then threatened to kill them if they said anything. That person never recovered, and her life was virtually destroyed, and her family members, since were talking a lot about family members, still live with the effects of that.
"Later in life, Mr. Davis committed an assault with a firearm with threats against two people, very callous and frightening crime where he - he essentially told them he would kill them, and then still later in life, after more prison time, he committed an extremely violent act against his live-in girlfriend with threats that were extremely callous.
"Mr. Davis, it is alleged, came to town to help out his relatives. Theres a little part of this case, the length of time between the death of his relative and his coming to town that Ive never been able to figure out, but anyway, came to town, that was his alleged and avowed purpose, to help his relatives.
"Another little - and I think that this has been explained, but its never sunk into me about why he didnt go live with his sister when he did get here, but he ended up in a hotel on K Street . . . its just not a good place. Wasnt then. As far as I know, it isnt now. He ended up with Mr. Simmons, who by all accounts, is one of the worst people that weve had come through here in a long time. I dont diminish Mr. Davis for where he lived during that time, and point of fact, the Court, in late 1989, lived in another trailer park not too far from there for a while and in a time of trouble for myself so I understand the area. I understand what its like. I understand that you can live there because its cheap. I dont understand running around with Mr. Simmons, and I certainly dont understand the manufacture of a billy club, which was taken, and I accept that that was done; I believe it was done. I dont believe anything to the contrary.
"I think Mr. Davis manufactured a billy club and knew how to do it. Put it together, make - made a very dangerous weapon out of it. Carried it around with him. I believe that when the officer came, Mr. Davis desperately tried to get away with the possession of the billy club, but he failed.
"Mr. Davis has, since he got out, I think, probably starting actually sometime in 1997, has worked very hard. I use these words on purpose, `worked very hard to portray himself as rehabilitated and worthy of a break. He, himself, used the word `establish, which I thought was kind of interesting. I would say, as a summary of what has happened with Mr. Davis, that it is in fact, too little too late."
The sentencing court concluded its remarks, stating:
"Striking strikes is something that should occur in the interest of justice. Ive read a lot of cases about striking strikes and why it should be done, and Ive done it in the past when I thought it was appropriate. I think Mr. Davis record, which is what we have to talk about here, and the fact of the crime that he stands convicted of, tell me that the interest of justice would not be served by striking any strikes, and the society deserves protection from Mr. Davis. [P] Having said that, the motion to strike the strikes is denied . . . ."
Appellate review of a trial courts decision on a motion to strike priors is not de novo. The superior courts order is subject to review for abuse of discretion. Although the standard is deferential, it is not empty. While variously phrased in various decisions, it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and relevant facts. Generally, sound discretion is compatible only with decisions controlled by sound principles of law, free from partiality, not swayed by sympathy or warped by prejudice. All exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. (People v. Cluff, supra, 87 Cal.App.4th at p. 998.)
Here, even a cursory reading of the sentencing courts lengthy remarks reveals meticulous consideration of the nature and circumstances of appellants present felony and prior felonies, as well as deep reflection upon appellants background, character, and prospects. (People v. Ortega (2000) 84 Cal.App.4th 659, 668.) In an effort to shift our attention from the sentencing courts moving statement, appellant maintains the court erred by considering a victim impact statement that violated section 1191.1 and was prejudicial under Evidence Code section 352. Section 1191.1 states in relevant part:
"The victim of any crime, or the parents or guardians of the victim if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime.
"The victim, or . . . the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents or guardians, and next of kin made pursuant to this section and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation."
In the instant case, the probation officer reported that appellant had been convicted of forcible rape on January 5, 1978. The son, daughter-in-law, and three granddaughters of the rape victim, now deceased, submitted a five-page victim impact statement in the instant case. Their statement set forth in detail the circumstances of appellants offense against the decedent, described the emotional impact of the offense on decedents life, and concluded:"We believe that Kirk Davis crime against Mary [S.] is indicative of a vicious, violent, anti-social individual for whom the three strikes law was enacted by the voters of this state. There is nothing about his behavior and record since that date to indicate otherwise. We believe he is dangerous and will continue to act in a violent manner. His possession of a billy, the crime of which he stands convicted, is indicative of his predisposition to use unlawful violence to achieve his own designs. We urge the court to impose the maximum sentence upon him."
Section 1191.1 was enacted on June 8, 1982, as part of an initiative measure entitled, "The Victims Bill of Rights." Proposition 8 applies only to crimes committed after June 9, 1982, its effective date. The crime against Mary S. took place on May 5, 1976, almost six years before the enactment of Proposition 8. Nevertheless, the main thrust of the initiative was to expand the rights of victims, not to restrict the scope of judicial inquiry into sentencing alternatives. A sentencing court may consider all reliable information relative to the circumstances of the crime and to the convicted persons life and characteristics. Section 1191.1 was not intended to change common law and limit information a sentencing court may consider in imposing judgment. Rather, it simply guarantees to the victim a right to be heard and considered. (People v. Zikorus (1983) 150 Cal. App. 3d 324, 330-332, 197 Cal. Rptr. 509.) Although Proposition 8 was not in effect at the time appellant committed and was sentenced for the rape of Mary S., nothing in that law precluded the sentencing court from considering the statement of her descendants in the instant case.With respect to alleged prejudice, Evidence Code section 352 states:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351.) The prejudice which exclusion of evidence under Evidence Code section 352 was designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. Rather the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. The trial judge has wide discretion in deciding the relevancy of evidence. (People v. Escobar (1996) 48 Cal.App.4th 999, 1023.) The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as a individual and which has very little effect on the issues. In applying Evidence Code section 352, "prejudicial" is not synonymous with "damaging." (People v. Coddington (2000) 23 Cal.4th 529, 588, disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Whether or not a criminal defendant is eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report. (Cal. Rules of Court, rule 4.411(a), (b).) A probation officers presentence investigation report in a felony case shall include collateral information, including written statements from interested persons, including family members and others who have written letters concerning the defendant. (Cal. Rules of Court, rule 4.411.5(a)(7).) When a sentence of imprisonment is imposed, the sentencing judge shall select the upper, middle, or lower term on each count for which defendant has been convicted. The middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(a).) Circumstances in aggravation include facts relating to the defendant, including the fact that defendant has engaged in violent conduct which indicates a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).)
In the instant case, the letter from the descendants of Mary S. had a direct bearing on whether appellant engaged in violent conduct indicative of a serious danger to society. The letter did not prejudge appellant or focus on extraneous factors. Rather, the letter was relevant to valid sentencing considerations set forth in the provisions of the Penal Code and California Rules of Court. Given the sentencing courts wide discretion in deciding the relevancy of such evidence, the submission and consideration of the letter in the instant case was not "prejudicial" within the meaning of Evidence Code section 352.
DISPOSITION
The judgment is affirmed.
We concur: VARTABEDIAN, Acting P.J., CORNELL, J.