Opinion
C081656
12-27-2016
THE PEOPLE, Plaintiff and Respondent, v. AVERY DERWIN DRAUGHTY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F07559)
Defendant Avery Derwin Draughty shot and killed his neighbor, Tiffany Silva, and was convicted of second degree murder with a firearm enhancement. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) He contends the trial court erred in finding inadmissible his prior consistent statement to his lawyer tending to show he was not fabricating a claim of self-defense. We will affirm the judgment.
BACKGROUND
Silva and her fiancé, Devlon Pittman, lived upstairs from defendant and his girlfriend, Wanette Armstrong. Pittman and defendant spent time together occasionally and had "no problems."
On November 28, 2013, Pittman was returning from the market and ran into defendant. Pittman gave defendant a cigarette and then returned upstairs. Silva and Armstrong were arguing outside Silva and Pittman's apartment. Defendant went upstairs and convinced Armstrong to return downstairs with him. Pittman and Silva returned to their apartment. Five minutes later, Pittman heard a knock at the door and Silva went to answer it. As Silva opened the door, defendant fired his gun and shot her. Defendant ran downstairs and got into a car. Pittman initially chased defendant but then returned to his apartment to tend to Silva. A neighbor called 911, but Silva died before the paramedics arrived. Although Pittman denied being armed at the time of the shooting, police found a BB gun hidden inside his apartment.
The police arrested defendant on March 14, 2015. Defendant initially told the police his name was Tommy Lee Brown but eventually gave them his real name. He had multiple credit and identification cards in other people's names. He also changed his appearance, including putting on weight and changing his hairstyle. He told police he was not the shooter. He also told police he would not name the shooter because he feared being a "snitch."
Defendant was charged with murder and an enhancement for personally discharging a firearm and proximately causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b)-(d); count one.)
At trial, defendant testified he acted in self-defense. The day of the shooting, Pittman told defendant that Pittman and Silva were fighting and Silva had accused Pittman of having affairs with Armstrong and another neighbor. Pittman also told defendant he would kill Silva and pulled a gun. Defendant responded that was wrong, and Pittman asked defendant to speak with Silva. Pittman and defendant went to Pittman's apartment, and defendant tried to convince Silva that Pittman was not unfaithful. When defendant said no one else would be intimate with Pittman, Pittman took offense and the two men began to argue. Pittman pulled a gun and defendant reacted by pulling and firing his gun. Defendant fled the scene and avoided the police because he feared getting into trouble for being a felon in possession of a gun. Defendant did not realize he had shot Silva until he heard a news report a few days later. He testified he avoided the police because he wanted to have his own lawyer. He also testified he lied to police when he told them he was not the shooter.
During cross-examination, defendant testified that he failed to say he acted in self-defense to either the police at the time of his arrest or any friend or family member prior to the trial. The prosecutor suggested defendant had made up his self-defense claim: "And you've been in custody for nearly a year with access to all of these reports, all the police reports, witness statements, you know all the evidence that was compiled against you?" Defendant responded yes, and the prosecutor asked, "And now you come into court and you say self-defense?" "Yes," responded defendant. Defendant then confirmed that, when he told police he was not the shooter, he had not seen any reports about the case and did not know how many witnesses there were, what they had said about him, or whether they were cooperating with police. The prosecutor continued: "And now after having access to that information for a year, it's not it wasn't me, it's Pittman had a gun, right?" Defendant replied "yes." The prosecutor then asked: "Because what you know today that you didn't know on March 14th when you were arrested before you had seen any photographs, reports, or statements is that there was a BB gun found in that apartment a couple days [after the shooting], a BB gun that you know nothing about on Thanksgiving Day 2013?" Defendant replied: "No. I told [my lawyer] before I even seen the paperwork when he asked me okay, what happened. I explained to him then what happened. I ha[d]n't seen the paperwork yet. So it wasn't like I just seen the paperwork and came up with a story. No, that's not what happened." The prosecutor responded, "Unfortunately [defense counsel] can't testify as a witness." Defendant replied, "Okay. But I'm telling you." The prosecutor asked, "You didn't tell anybody else at any point, including the police officer who arrested you, self-defense?" Defendant replied, "No, I did not."
Outside the presence of the jury, defense counsel reiterated defendant had said he acted in self-defense before receiving any of the discovery. Counsel asked to call himself as a witness, arguing it was necessary to rebut the prosecutor's implication that defendant fabricated his self-defense claim to conform with the discovery and reports. The trial court denied defense counsel's request, reasoning such testimony would waive attorney-client privilege and lead to questioning regarding the context of the information defendant provided to counsel.
The trial court also deemed inadmissible defendant's testimony regarding his statement to his lawyer. The statement failed to satisfy Evidence Code section 791 [prior consistent statement] because it was made after the prior inconsistent statement to police and after the motive for fabrication arose. In addition, the testimony was not responsive to the prosecutor's question about whether defendant knew at the time of his arrest that police had found a BB gun in Pittman's apartment a few days after the shooting.
Undesignated statutory references are to the Evidence Code. --------
A jury found defendant guilty of second degree murder and found true the enhancement for discharging a firearm and proximately causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).)
The trial court sentenced defendant to an aggregate 40 years to life, as follows: 15 years to life on count one, and 25 years to life for the firearm enhancement. (Pen. Code, § 12022.53, subd. (d).)
DISCUSSION
Defendant contends the trial court erred in excluding his statement to his lawyer that he acted in self-defense. Defendant claims his statement was admissible as a prior consistent statement pursuant to section 791, subdivision (b). According to defendant, this error prevented defendant from calling his lawyer as a witness, which was necessary to refute the prosecutor's implied charge that defendant fabricated his self-defense claim.
"Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." (§ 1236.) Such a statement is admissible under section 791 to support a witness's credibility if it is offered after "[a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (§ 791, subd. (b).) " '[R]ecent fabrication may be inferred when it is shown that a witness did not speak about an important matter at a time when it would have been natural for him to do so,' and in such a circumstance, 'it is generally proper to permit rehabilitation by a prior consistent statement.' [Citations.]" (People v. Riccardi (2012) 54 Cal.4th 758, 803, overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Although the prosecutor suggested defendant fabricated his self-defense testimony, defendant has not shown that his proffered statement to his lawyer was made before he had a motive to fabricate his story or minimize his culpability. Defendant had already been arrested and arraigned on murder charges when he told his counsel he acted in self-defense. Even if defendant did not yet know the police found a BB gun in the victim's apartment, he already had a motive to fabricate and claim self-defense at the time the purported consistent statement was made. The trial court did not abuse its discretion in excluding the statement. (See People v. Waidla (2000) 22 Cal.4th 690, 725.)
To the extent defendant argues the trial court violated his constitutional right to present a defense or to a fair trial by excluding his statement to counsel, we disagree. Absent extraordinary circumstances, a defendant's constitutional rights are not implicated in the exercise of discretion to admit or exclude evidence. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Lawley (2002) 27 Cal.4th 102, 155.) Defendant has not shown extraordinary circumstances.
Because we find no evidentiary error, we do not address defendant's arguments regarding the testimony his counsel might have provided.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.