Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01415
SIMS, Acting P. J.Defendant Armondo de la Cruz appeals his convictions for spousal abuse and battery. He contends the trial court abused its discretion by excluding relevant evidence of the victim’s past violent behavior towards him, that Judicial Council of California Criminal Jury Instructions (CALCRIM) 220 erroneously defines reasonable doubt, and that the trial court inadequately considered his Marsden motion. Because we find the court erred in excluding the proffered evidence regarding the victim’s past behavior, we shall reverse.
People v. Marsden (1970) 2 Cal.3d 118.
RELEVANT FACTUAL BACKGROUND
Defendant and Paula C. met and married in 1998. Almost from the beginning, the relationship was volatile.
In January, 1999 defendant’s children were visiting and he and Paula argued about the children. Both defendant and Paula had been drinking that day. Defendant hit Paula in the face with his open hand. She suffered two black eyes. Defendant was arrested and ultimately was convicted of spousal abuse.
In 2003, Paula and defendant went to a George Lopez concert. Again, the pair had been drinking and got into an argument. Paula walked away, defendant followed her and pushed her to the ground. She sustained abrasions on her knees. Paula called the police, showed them her injuries and defendant was arrested.
There is no indication in the record that this arrest led to any charges or a conviction.
In 2005, Paula and defendant were at a bar, drinking and hanging out. They got into an argument and Paula left to walk home. Defendant followed her, grabbed her purse and knocked her to the ground. She sustained a scrape to her knee. Paula called the police and defendant was arrested. No charges or convictions resulted from this arrest.
On February 4, 2006, the couples’ friend Lori Reynolds came for an overnight visit. Defendant and Paula began the evening drinking beer, then moved to drinking vodka with cranberry juice. Reynolds continued drinking beer. They then drove to a neighborhood bar and continued drinking. Paula felt that Reynolds and defendant were flirting with each other, which made her feel hurt and upset. Paula told Reynolds she was no longer welcome to stay the night at their house, and she left the bar to walk home.
About 10 to 15 minutes later, Reynolds and defendant also arrived back at the house. Reynolds packed her things and left. Defendant left the house within a minute or so of Reynolds leaving and returned to the bar. About an hour and a half later, defendant returned home. He went into the bedroom and shut the door. Paula followed defendant into the bedroom and then to the bathroom to get contact solution and her contact case.
Defendant and Paula then began to argue about the situation with Reynolds. From the expression on defendant’s face, and her past experiences with him, Paula knew defendant was going to get violent. As defendant approached her, Paula put her hands up and pushed defendant in his chest. Defendant pushed her back and grabbed her arms. The pair struggled and defendant backhanded Paula with his fist. She fell back and lost consciousness.
When Paula regained consciousness, she was lying on the floor and her face was extremely swollen, her eye was completely shut and she had massive bruising on her face. She lay down on the bed and defendant got an ice pack and held it on her face for several hours. The next morning, Paula asked defendant how many times he had hit her and he answered once and “not that hard.”
Paula called her friend Denise Garcia and asked her to come over. She also asked defendant to pack his things and leave. Defendant did not argue with Paula, gathered his things and left.
Denise took Paula to the emergency room. A doctor removed the contact lens from Paula’s eye. Paula had significant swelling around her face, and the upper and lower lids of her eye. She also had an abrasion on her face, about a half inch below her left eye. Photographs taken of Paula showed her lower lip was split and she had bruising on her arm and shoulder. A CAT scan revealed Paula had an orbital floor fracture. Five days later, Paula had surgery to repair the eye socket. A titanium plate was inserted to rebuild the bone. She continues to have no feeling on the left side of her face. An orbital floor fracture is caused “almost exclusively” by a blow from a fist. It is unlikely to be caused by falling and hitting furniture.
Defense Case
Defendant testified on his own behalf. He testified that every time he had hit Paula, she had hit him first.
He admitted hitting Paula in 1999. He stated he and Paula had been arguing over his children. Their son was babysitting their children while they went to a bar. Paula got angry, and when they got home, she was “cussing” at his children, who were only five and six years old. He told her to stop speaking like that to the children and she turned on him, cussing him and hitting him. He slapped her back. She called the police and he went to jail.
He denied ever pushing Paula during their relationship, claiming she would get “so dang drunk she falls down.” Defendant admitted he had pled no contest to making criminal threats against Paula, but denied he had ever threatened to kill her.
For example, the incident in 2003 at the George Lopez concert, defendant denied he had pushed Paula, saying she had just fallen down. Similarly, in 2005, he denied pushing her to the ground, claiming instead she had been drunk and again fallen down. He testified this was a common occurrence.
As for the night of February 4, 2006, defendant claimed he was not really friends with Reynolds, rather she was friends with Paula. He denied he had been flirting with Reynolds, but acknowledged Paula thought he was flirting. Reynolds and defendant decided to start diluting Paula’s drinks, because they saw she was “getting a little angry.”
When Paula left the bar, he knew she was mad and he told Reynolds they had to leave. When they got to the house, Paula was waiting and started cussing and calling Reynolds names. Reynolds went into the house and defendant left, drove back to the bar and drank water for the next hour and a half, hoping Paula would be passed out by the time he got home.
Unfortunately for defendant, Paula was still conscious when he returned to the house. She was angry. She “came at him”, started “cussing” at him, “flipping [him] off” and hitting him. Defendant continued on into the house, going into the bedroom, where he closed and locked the door behind him. Paula was outside the door “yowling” and trying to open the door. She started kicking the door, hard enough that she started to leave a hole in the door. Because of the potential damage to their apartment, defendant opened the door. When he did, Paula “attacked” him. She was hitting and kicking him. He grabbed her arms to stop her from hitting him and she kept kicking him. Defendant was backing away and Paula kept coming at him, hitting him and cussing at him. Defendant ended up cowering in the corner of the room. To get away from Paula, he backhanded her with an open hand, and Paula went “flying,” landing on the bed. Defendant ran out the door, into the garage and sat there for about 20 minutes.
Defendant came back into the bedroom and saw Paula’s eye was swollen shut. He asked her what had happened, and she said she did not know. Defendant wanted to call the police, but Paula did not want to, she wanted to care for her eye. Paula fell asleep and defendant held an ice pack on her face from 2:00 a.m. to 9:00 a.m.
By 9:00 a.m. the next day, Paula wanted defendant to leave. She told him if he did not leave, she would call the police. Then she called defendant’s sister, Denise Garcia. Garcia asked defendant what he had done, and told him they needed to get Paula to the hospital.
Photographs taken of defendant when he was booked into jail showed bruising on his right foot which he claimed was from Paula kicking him. Also, the next day, a mutual friend observed a hole in the bedroom door about 12 to 18 inches from the bottom.
PROCEDURAL HISTORY
In count 1, defendant was charged with spousal abuse (Pen. Code, § 273.5, subd. (a)), with an additional allegation he had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)), and in count 2 he was charged with battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)). It was also alleged defendant had suffered a prior domestic violence conviction. (Pen. Code, § 273.5, subd. (e)(1))
After the close of the prosecution’s case, but prior to the presentation of the defense case, the People moved to exclude “reference to the victim’s -- any of the victim’s -- she’s an alcoholic, or prior use of alcohol.” The prosecutor agreed it was relevant whether she was drinking on the night in question or any other night on which specific incidents occurred. However, “generally, whether or not she drinks, or how she behaves when she drinks, I would ask to exclude as not relevant and improper character evidence.”
Defense counsel argued he had potential witnesses who knew both defendant and the victim, and were “familiar with their behavior patterns when they drink because they drink with them from time to time. And they... have seen the complaining witness when she’s been drinking and physically attack my client, physically striking him, and basically being violent with him. [¶] They have also observed the complaining witness being verbally abusive with him and provoking him, engaging in provoking him. All of this occurs when she’s drinking. [¶] This is consistent with the evidence produced on direct that all of the propensity evidence offered by the district attorney with respect to prior occasions, perhaps all depending on which version of the complaining witness’s statement you wish to lend credence to, involved drinking. [¶] So we know that when she drinks, incidents occur. It is certainly the defense in this case that this behavior in this incident was initiated by the complaining witness, who initiated the physical confrontation by pushing and striking my client in a closed area. [¶] And while it may not be consistent with the district attorney’s theory, it is consistent with the state of the evidence at this point that my client was cornered. [¶] And the complaining witness was between him and the door, and striking him, and certainly falls within the realms of self-defense. [¶] If that’s our defense, then certainly her propensity to strike him when she’s drunk -- and she’s admitted to being drunk -- is relevant. And so I think it’s properly relevant material.”
The court asked how defense counsel planned to get around the bar on character evidence found in Evidence Code section 1101, subdivision (a). At that hearing, defense counsel did not have an answer. Accordingly, the court ruled, that “absent any further citation to an Evidence Code section that would allow such evidence” the testimony would not be admissible. Defendant went on to put on and concluded his case, without such evidence.
Undesignated statutory references are to the Evidence Code.
The following day, defense counsel moved for a mistrial or permission to reopen. Counsel noted that section 1103 allowed for the introduction of the evidence of Paula’s violent behavior toward defendant when she had been drinking.
Section 1103 provides, in pertinent part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Defense counsel indicated he had three witnesses, Robert Stout, Frank Karlson and Sally Karlson. As an offer he stated, “All of them are familiar with her reputation for violence with respect to [defendant], particularly when she’s been drinking. [¶] They have all known her for approximately three years. All of them have specific instances where she has struck him, hit him, slapped him, and pushed him. [¶] And all have specific instances where they observed him defend himself from her attacks. [¶] It is certainly relevant to the defense. I think it qualifies as both opinion evidence and specific incidents evidence within 1103 because it’s inherently supportive, and inherently goes to the defense I think the exclusion of it was certainly -- I then didn’t present any evidence from them. [¶] And it tremendously weakened the defense.” All three witnesses were available outside the courtroom to testify.
The People responded, that two of the proposed witnesses had been at court the day before and “were going to testify, or in their statements, were present on the night of the incident, and had mentioned something in their statements about the victim hitting or pushing the defendant in the bar. [¶] And those the Court ruled would have come in. Those were the night of the incident. And yet [defense counsel] had chosen, as a tactical decision, to not put them on yesterday. [¶] I don’t remember those statements discussing evidence of prior specific instances of the victim. I remember them talking about her drinking, and her being loud when she drinks, or being angry, and things like that. [¶] But I don’t remember them specifically discussing anything about violent character, or her character for violence. And so, in my opinion, [defense counsel] chose as a tactical matter not to call those witnesses yesterday and has now changed his mind.”
The court denied both defense motions. “The Court was aware of Evidence Code section 1103, even though it wasn’t cited by [defense counsel] yesterday. Even under 1103, it’s clearly within the court’s discretion whether to allow such evidence. [¶] Under Evidence Code section 352, the Court believes a mistrial -- and that evidence would not be admissible. The issue in this case is what happened that evening, not what may have happened, or what someone may have seen over the years, or on certain events. [¶] Character evidence is within the discretion of the Court. And under the facts of this case, also given the defendant testified and was allowed to testify about, in part, some of his history with the victim, the purported evidence, clearly in this Court’s view, is excludable under Evidence Code section 352.”
Accordingly, the jury was then instructed and ultimately found defendant guilty on both counts. In bifurcated proceedings, the court found true the allegation that defendant had sustained a prior conviction. Defendant was sentenced to an aggregate term of eight years in prison.
DISCUSSION
Defendant contends the trial court’s ruling excluding the evidence of Paula’s previous acts of violence towards him, particularly when she was inebriated, denied his due process right to present a defense. The People counter that defendant’s offer of proof was deficient and that this ruling was within the discretion of the trial court under section 352. We agree with defendant.
Offer of Proof
“‘“‘Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.’ [Citation.]” [Citation.] “The offer of proof exists for the benefit of the appellate court. The offer of proof serves to inform the appellate court of the nature of the evidence that the trial court refused to receive in evidence.... The function of an offer of proof is to lay an adequate record for appellate review....” [Citation.]’ [Citation.]” (People v. Foss (2007) 155 Cal.App.4th 113, 127.)
An offer of proof must consist of material that is admissible, and it must be specific in indicating the name of the witness and the purpose and content of the testimony to be elicited. “‘An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.’ [Citation.]” (People v. Brady (2005) 129 Cal.App.4th 1314, 1332.)
Here, as described more fully below, the offer consisted of admissible evidence. It set forth the names of the witnesses and the proposed content of their testimony. The proffer laid an adequate record for appellate review.
Admissibility of Evidence
Section 1103 is an exception to the general rule prohibiting admission of character evidence found in section 1101, subdivision (a). Specifically, under section 1103, a criminal defendant may support a claim of self-defense with evidence of the victim's propensity to be violent. (People v. Wright (1985) 39 Cal.3d 576, 587.) “[I]n a prosecution for homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, footnotes omitted.) The victim's character trait for violence may be shown by evidence of the victim’s reputation or the victim's specific acts. (Id. at p. 447.)
Defendant proffered evidence supporting a self-defense theory based on his claim that he struck Paula only after she had initiated the physical confrontation between them by pushing and striking him and had him cowering in the corner. Evidence of prior incidents where Paula had been drinking and gotten physically violent with defendant were admissible under section 1103 to corroborate defendant’s version of the events and were relevant on the issue of defendant’s state of mind during the fight. (§ 1101, subd. (b); People v. Minifie (1996) 13 Cal.4th 1055, 1067; People v. Mathis (1965) 63 Cal.2d 416, 430.) In determining whether the defendant acted reasonably in self-defense, the jury was entitled to consider all the factors that operated on the defendant's mind, including prior assaults perpetrated by the victim. (People v. Minifie, supra, 13 Cal.4th at p. 1065; People v. Spencer (1996) 51 Cal.App.4th 1208, 1220.) Evidence relevant to defendant’s state of mind was evidence that was relevant for the jury to consider when deciding what inferences to draw and conclusions to reach from all the circumstances surrounding the altercation.
Here, in explaining its ruling excluding the proffered evidence the previous day, the court relied on section 352 to find the evidence was not admissible. The court found “[t]he issue in this case is what happened that evening, not what may have happened, or what someone may have seen over the years or on certain events.... also given the defendant testified and was allowed to testify about, in part, some of his history with the victim, the purported evidence, clearly in this Court’s view, is excludable under Evidence Code section 352.”
The trial court here, was correct that the decision to exclude evidence under section 352 comes within the trial court's broad discretionary powers. Such a discretionary choice “will not be overturned absent an abuse of that discretion.” (Minifie, supra, 13 Cal.4th at p. 1070.) Nevertheless, section 352 “must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Thus, the balancing under section 352 “is particularly delicate and critical where what is at stake is a criminal defendant's liberty” (People v. Wright (1985) 39 Cal.3d 576, 584-588), and the trial court's exercise of discretion under section 352 “should favor the defendant in cases of doubt” (People v. De Larco (1983) 142 Cal.App.3d 294, 306).
As our Supreme Court has cautioned, “‘trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.’” (Wright, supra, 39 Cal.3d at pp. 584-585.) Even “‘the best trial Judge may err’” concerning “‘“[q]uestions as to the admissibility of evidence [arising] in the hurry of a... trial”’”; thus, “‘“[w]henever the evidence proposed by the defense is not plainly inadmissible,”’” both trial courts and prosecutors are well advised “‘“to let [the evidence] go”’ before the jury, rather than risk reversal or a miscarriage of justice by barring its admission.” (Ibid., quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)
Under section 352, evidence is properly excluded if its probative value is “substantially outweighed” by the probability that the evidence will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (§ 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
The evidence defendant sought to introduce was highly probative to his self-defense claim. Nothing in the record suggests the evidence would have consumed an undue amount of time, as it was testimony to be offered by only three witnesses, all of whom were immediately available. Nor would the evidence have been likely to confuse or mislead the jury. The issue of self-defense, and whether Paula had initiated the aggression, was before the jury. So was Paula’s inebriation.
Further, there was no risk of undue prejudice with this evidence. “‘The “prejudice” referred to in... section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Here, the proffered testimony had a direct bearing on defendant’s claim of self-defense and would not have evoked an emotional bias against him. In short, this evidence was neither inflammatory nor misleading with respect to any material issue at trial.
Given the balancing under section 352, and the particular consideration which should be given in such a balancing when the proffered evidence goes to the very heart of the defendant’s defense, we find the court abused its discretion in excluding this evidence.
Nor can we say that such an error was harmless. The evidence was highly probative on defendant’s self-defense claim, and also could have cast a different light on the character evidence admitted against him. Although the evidentiary portion of the trial was relatively short, two and a half days, the jury deliberated for almost 12 hours, over the course of a day and a half. The jury also asked for read backs of defendant’s testimony regarding the fight in the bedroom and the doctor’s testimony regarding Paula’s injuries. Thus, the record demonstrates “the jury did not find this to be an easy case.” [Citation.] (People v. Fuentes (1986) 183 Cal.App.3d 444, 456.)
The issue of self-defense was critical and based on the record, the case was closely balanced. “An error that impairs the jury's determination of an issue that is both critical and closely balanced will rarely be harmless. Rather, after an examination of the whole record we find it reasonably probable that a result more favorable to defendant would have been reached in the absence of this error. (People v. Watson (1956) 46 Cal.2d 818, 836.) There has therefore been a miscarriage of justice, and the judgment must be reversed. (Cal. Const., art. VI, § 13.)” (People v. McDonald (1984) 37 Cal.3d 351, 376 -377, overruled on a different point in People v. Mendoza (2000) 23 Cal.4th 896.)
Our reversal on this point obviates the need to address the other issues raised by defendant.
We do note, however, that defendant’s arguments regarding the validity of CALCRIM 220 have already been decided and rejected. (People v. Zepeda (2008) 167 Cal.App.4th 25; People v. Guerrero (2007) 155 Cal.App.4th 1264; People v. Campos (2007) 156 Cal.App.4th 1228.)
DISPOSITION
The judgment is reversed and the matter remanded.
We concur: HULL, J., ROBIE, J.