Opinion
D073916
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID DERON DICOLA, Defendant and Appellant.
Janice R. Mazur, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD272613) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Janice R. Mazur, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant David Deron DiCola was found guilty of three charges resulting from an altercation with a fellow patron at a bar. He appeals the judgment, arguing that the court erred by admitting evidence of the facts underlying a prior assault conviction.
In his testimony, DiCola made several statements potentially bearing on his character, initially testifying, "I never wanted to hurt somebody" in response to a question about his remorsefulness on direct; later asserting, "I don't want to hurt people. It's not my M.O." in response to a question during cross-examination about his resisting arrest; as well as "I never try to hurt somebody" when asked whether he punched the victim as hard as he could. On the basis of this testimony, the court then permitted the prosecution to elicit information from DiCola about the facts underlying a prior assault conviction.
As we discuss post, DiCola's testimony during cross examination expressed a general opinion of his overall character as peaceable—"I don't want to hurt people. It's not my M.O." His subsequent statement, "I never try to hurt somebody," may be understood as expressing a general opinion that he is not the kind of person who would hurt somebody or, in other words, that he is peaceable. If interpreted in this manner, the testimony about the facts underlying the assault conviction would have been inadmissible under Evidence Code section 1101 and not subject to section 1102's exceptions for rebuttal character evidence in the form of general opinion or reputation testimony. Because of the context of this testimony, however, the court may have interpreted the statement to describe instances of prior conduct, which may have rendered the testimony admissible by impeachment on credibility grounds. Regardless, given the ample video and eyewitness evidence adduced at trial, any error was harmless. Accordingly, we affirm.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. The May 2017 Altercation at the Bar
On an evening in May 2017, DiCola visited a bar with a friend. Arriving about 6:15 or 6:30 p.m., they played pool, watched a baseball game, and shared a pitcher of beer. DiCola was not a regular at the bar and had only been there about three times in the prior five years. But he was familiar with the bar for other reasons. His grandmother worked there previously, and his friend's father had been murdered outside the bar after a fight.
Later in the evening, DiCola engaged in what became an animated discussion with two other patrons at the bar. They called him names, and tension escalated. According to DiCola, one of the patrons (the eventual victim) called him "the N word" twice. DiCola left his seat at the bar and "went over to have a conversation with him about it and why he would use that language." DiCola said that at that point the victim "[m]ade a couple moves that made [him] feel a little frightened." As he "was stepping back, [the victim] looked [DiCola] directly in the eyes and he asked [him] if [he] was ready to die."
DiCola then grabbed the back of the victim's neck to keep his target still and punched the victim twice in the face. The victim crumpled to the floor. After a few moments of scuffling with other patrons, DiCola's friend pulled him away from the altercation and out of the bar. DiCola left the scene without waiting for police to arrive. The victim suffered fractures to his orbital, nasal, and jaw bones, as well as nerve damage in his face. B. Evading Law Enforcement
In June 2017, San Diego police detectives were surveilling DiCola's apartment when they observed him entering a barbershop and attempted to arrest him inside. The detective who entered the barbershop identified himself as a San Diego police detective, but DiCola ran outside and physically resisted detectives waiting for him. C. Admission of the Relevant Evidence at Trial
1. The Prior Assault Conviction
In August 2008, DiCola saw a woman he knew being chased by a man he did not know. DiCola rushed over and repeatedly punched the man, leaving him unconscious with a laceration, concussion, and profuse bleeding. A security officer witnessed the assault and tried to intervene. Later, DiCola found out that the man was a cabdriver and that the woman he knew had fled the cab without paying the driver.
2. Motions in Limine
Prior to trial, the prosecution moved in limine to admit Dicola's prior felony conviction for assault if the defendant elected to testify, pursuant to section 788's provision for the use of prior felony convictions to impeach witness credibility (motion in limine No. 2). Likewise, the prosecution moved to admit evidence of the prior assault conviction under sections 1102-1103, if the defendant either offered evidence of his own nonviolent character or attacked the victim's character (motion in limine No. 4).
In response, DiCola argued that the conviction and its underlying facts were inadmissible under section 1101 and should be excluded under section 352. On those grounds, DiCola also moved in limine to exclude prior arrests and convictions for impeachment if he chose to testify—either for impeachment on credibility grounds or for character evidence purposes (motion in limine No. 5).
The court, jointly considering the prosecution's second motion in limine and the defense's fifth, ruled that the prior conviction would have to be sanitized and could only be generically referenced as a prior felony conviction—the nature of the conviction would be too prejudicial. Later, in discussing the prosecution's fourth motion in limine, the court viewed it as simply "a correct statement of the law." "If the victim's character for violence is introduced by the defendant, then I think the law says, well, the People can then put in the defendant's character for violence. [¶] How that's proven, you know, we've got three different ways to provide it." Continuing, the court explained that "if the defendant puts into evidence, gee, I'm a peaceful guy who wouldn't do that, then, of course, I think it opens the door . . . to putting it in." The court granted the motion, "understanding that it is likely to be moot." The court later revisited the "second prong" of DiCola's fifth motion in limine, i.e., to prohibit evidence of the prior conviction from being used as character evidence under section 1101. The court confirmed with the prosecution that it did not intend to use that evidence as character evidence under section 1101, and with that understanding, granted the motion. "But," the court cautioned, "if an 1103 trigger comes in, we'll revisit it."
3. Trial
On direct examination, DiCola was asked how he felt after hearing the evidence during the prosecution's case-in-chief and seeing the extent of the harm suffered by victim: "How has that been for you, sitting here watching all of that?" DiCola responded, "I'm remorseful. I never wanted to hurt somebody. That wasn't something that I had planned. I never wanted to get in a fight, you know."
During cross-examination, DiCola voiced similar comments in response to a question asking why, when he was arrested, he had not punched the police officer despite physically resisting to a lesser extent. "I don't know. Just because what had just happened not too long ago, you know, someone got punched. I don't want to hurt people. It's not my M.O." A few minutes later, DiCola was asked if he had any reason to believe that he had used anything less than his maximum effort in punching the victim. "Um, I mean, I never try to hurt somebody. So I'm like I—I really don't know how hard I would have hit somebody at that moment." Following these comments, the court held a sidebar conference, after which the prosecutor was permitted to elicit testimony about the details of DiCola's prior assault conviction.
The court and counsel later developed the record with respect to the sidebar conference. According to the court, DiCola testified, "on direct, I believe—the testimony was, quote, 'I never tried to hurt somebody. I'm, like, I'—and then he shifted to a different subject." DiCola's counsel objected and recalled the testimony differently, as " 'I never tried to hurt anybody,' " understanding "anybody" to refer to the victim. Counsel saw the testimony "as having an ambiguous interpretation," which in "that context . . . had not been enough to open the door, considering our in limine discussions . . . ." The court "did not see the same ambiguity," overruled the objection, and allowed the testimony. E. Verdict and Sentence
The jury found DiCola guilty on all three counts: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1), battery with serious bodily injury (Pen. Code, § 243, subd. (d); count 2), and resisting an officer (Pen. Code, § 148, subd. (a)(1); count 3). With respect to counts 1 and 2, the jury found true the allegation that DiCola personally inflicted great bodily injury on the victim. (Pen. Code, §§ 12022.7, subd. (a) & 1192.7, subd. (c)(8).) The following month, the trial court sentenced DiCola to state prison for five years, consisting of the low term of two years on count 1, with an additional three years for the enhancement under Penal Code section 12022.7, subdivision (a). The court further sentenced him on count 2 to the upper term of four years (stayed pursuant to Pen. Code, § 654), and on count 3 to a concurrent term of 96 days (with credit for 96 days served).
DISCUSSION
A. Admissibility of the Factual Details Concerning the Prior Assault
Under section 788, any witness's credibility may be attacked "by the examination of the witness or by the record of the judgment that [they have] been convicted of a felony," subject to section 352, which provides the court with discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (See People v. Castro (1985) 38 Cal.3d 301, 305-306.) Jurors are routinely instructed that they should consider whether a witness has a felony conviction in evaluating their credibility. With this framework in mind, the court ruled that the fact of DiCola's conviction, appropriately sanitized, was admissible pursuant to sections 788 and 352. But the facts underlying DiCola's conviction were not sufficiently probative on the issue of DiCola's credibility to overcome the undue prejudice that would result from the jury hearing the details of the prior assault of the cabdriver.
Section 788 also includes several exceptions that are not applicable or relevant here.
Underlying facts about specific prior conduct, however, might bear on DiCola's credibility as a witness if he testified that he had never been in a fight or had never hit anyone in his life. In other words, if DiCola made verifiable statements about his peaceable character in reference to specific acts, the demonstrable falsity of which tended to show a lack of credibility, then evidence relating to the specific prior conduct may bear on his credibility. (See People v. Lankford (1989) 210 Cal.App.3d 227, 231 (Lankford).) In most cases, such character testimony would be inadmissible under section 1101 and (as evidence in form of specific instances of conduct) not subject to the section 1103 exception for character rebuttal evidence. But under limited circumstances, where fairness compelled the court not to leave the jury with the impression created by the defendant's verifiably-false testimony, character evidence in the form of specific instances of conduct may be admissible for impeaching the testifying defendant's credibility. (See Lankford, at p. 240.)
DiCola's appeal raises a basic tension in the admission of character evidence by a testifying defendant on cross examination in the form of specific instances of conduct. On one hand, defendants place their credibility at issue by electing to testify in their own defense. Therefore, their testimony is subject to impeachment for credibility. (See People v. Doolin (2009) 45 Cal.4th 390, 437-438; People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) On the other hand, a straightforward statutory framework directs that the defendant's offer of general opinion or reputation character evidence opens the door to character evidence about the defendant via general opinion or reputation evidence—but not evidence in the form of specific instances of conduct, like the prior assault evidence here.
Section 1101 offers the general rule for the admission of character evidence, that "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." But there are exceptions, including, as noted in the statute, at section 1102, for "evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation . . . if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)." Thus, subdivision (b) becomes operative once the defense has introduced evidence under subdivision (a) of "character in the form of an opinion or evidence of his reputation." Critically, although section 1102 references character evidence "in the form of an opinion or evidence of his reputation," it omits evidence in the form of specific instances of conduct. The omission is purposeful—section 1103, for example, is similarly-structured but conspicuously references specific instances of conduct, and the applicable California Law Revision comments expressly discuss the distinction.
In Lankford, the court considered this same question, declined to resolve whether the testimony was properly admitted as rebuttal character evidence, and instead decided the issue on credibility grounds. (Lankford, supra, 210 Cal.App.3d at p. 231.) The court held "that the prosecution evidence in this case of prior specific acts of appellant's conduct was properly admitted on the issue of his credibility, even though such evidence also related to appellant's prior conduct that rebutted evidence of his recent good moral character." (Id. at p. 240.) The defendant had admitted on direct examination that he had a prior felony conviction but added, " 'I didn't have [any] incident yet since I've been out.' " (Id. at p. 232, italics omitted.) The prosecutor then "asked permission to question [him] about an immediately pending trial for five counts of armed robbery and one count of assault with a deadly weapon." (Ibid., italics added.) On such extreme facts, the trial court overruled the defense's objections, explaining that the defendant "had opened up the area of his conduct, and that it would be unfair to leave the jury with the impression he had 'been on his good behavior' since being released from prison." (Ibid.)
Here, DiCola's three statements on the subject of aggressive behavior were all somewhat similar, but each differed from the others in significant respects. Dicola's testimony on direct examination, "I never wanted to hurt somebody," followed a question about his remorsefulness. He may not have been discussing his character, or a trait of his character, at that point. His later assertion, "I don't want to hurt people. It's not my M.O.," in response to a question during cross-examination about his resisting arrest, however, certainly related to his character for peaceableness. Similarly, his statement, "I never try to hurt somebody," made after he was asked whether he punched the victim as hard as he could, may have been reasonably understood as offering a general opinion about his character. Viewed from this perspective, DiCola was expressing that he is the kind of person who would never try to hurt somebody—or in greater context, that while he may have needed to defend himself in the altercation at the bar, his actions must have been proportionate to the risk of harm he faced because he is not the kind of person who would exceed that level to try to hurt somebody.
Nevertheless, we typically review evidentiary rulings involving character evidence for abuse of discretion. (See Doolin, supra, 45 Cal.4th at p. 437, citing People v. Harris (2005) 37 Cal.4th 310, 335 and People v. Gray (2005) 37 Cal.4th 168, 202.) Here, the court may have understood DiCola's testimony as relating to specific instances of prior conduct, interpreting it to mean that in all prior physical altercations DiCola had never used force disproportionate to the risk of harm. From this perspective, the prior assault testimony may have been admissible to impeach DiCola on credibility grounds. (See Lankford, supra, 210 Cal.App.3d at pp. 231-232.) Regardless, as we explain, any error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) B. Prejudice
DiCola concedes that a trial court's evidentiary rulings involving character evidence are reviewed for abuse of discretion, but contends that because the court made "an error of law [in admitting] evidence which was inadmissible by statute," we should apply de novo review. The People fail to address the standard of review in their brief but note in summation that "the trial court did not abuse its discretion."
The People also contend that the testimony relating to the prior conviction should be admitted under section 1103, subdivision (b). But this section does not apply. DiCola testified that the victim's actions and demeanor on the night in question were aggressive. But none of the testimony here about the night in question amounts to evidence tending to show the victim's character for violence under section 1103. (See, e.g., People v. Blanco (1992) 10 Cal.App.4th 1167, 1169-1174.)
DiCola argues that admission of the facts underlying his prior conviction was prejudicial given the frequency and intensity of the prosecution's discussion of the evidence. The jury heard that DiCola "knocked [the victim] on the ground and continued to beat him, causing him a concussion and lacerations," during which the defendant "blacked out." And the prosecution asked each of the defendant's character witnesses whether they were aware of the assault. DiCola further notes the trial court's recognition prior to trial that "if we tell [the jury] it's an aggravated assault, the prejudicial affect ratchets way up."
Furthermore, DiCola contends that despite having admitted he punched the victim in the face twice, this case presented a close question for the jury given the viability of his self-defense claim. According to his testimony, DiCola feared the victim might stab him because he heard him threaten "[a]re you ready to die" immediately prior to the assault.
Although there was no audio evidence to corroborate DiCola's claim about the victim's remark, the prosecution did introduce video evidence of the altercation. Together with the eyewitness testimony, the video firmly refutes the claim of self-defense. It contradicts DiCola's version of the altercation (that tripping while walking caused him to get so physically close to the victim), and it demonstrates that any fear of harm from the victim, irrespective of anything spoken, was objectively unreasonable. As the trial court noted during sentencing, the video shows this was "absolutely not a case of self[-]defense." Accordingly, it is not reasonably probable that exclusion of the prior assault evidence would have resulted in a more favorable verdict. (See Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. AARON, J.