Opinion
A145005
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. VERNA ERVIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR222343)
Verna Ervin was convicted by a jury of attempted voluntary manslaughter and assault with a deadly weapon. She contends the court abused its discretion and violated her constitutional rights when it prohibited her from impeaching a prosecution witness with evidence of his prior DUI convictions. The ruling was not an abuse of the court's discretion, so we affirm.
BACKGROUND
Ervin and Garry Fauerbach argued outside a bar in Vallejo because Ervin thought one of Fauerbach's employees had damaged her car. The argument escalated and ended when Ervin stabbed Leveni Toki. Ervin did not dispute that she stabbed Toki, but claimed she did so in self-defense after he assaulted her. Prosecution witnesses testified Ervin stabbed Toki without provocation. The following evidence was relevant to the challenged ruling.
On the morning of October 26, 2014, Ervin and her mother, Ursula Hicks, called Dan Sealy to ask whether, as Ervin believed, Sealy scraped her parked car when he pulled his truck out of Hicks's driveway that morning. Sealy initially admitted he might have scratched Ervin's car, but later he called back and denied responsibility. Ervin and Hicks called Sealy's boss, Gary Fauerbach, at the Blue Rock Lounge. Ervin told Fauerbach what had happened and asked for his insurance information. According to Fauerbach, she was "pretty irate, saying, you know, different profanity, different verbiage, very angry on the phone" and demanded money to take care of her car.
According to Ervin, Fauerbach told her his " 'insurance wasn't paying for shit.' " Hicks testified that Fauerbach "went completely off," "yelling, screaming, calling [Ervin] 'bitches,' " but told Ervin to bring the car to him so he could look at it. Ervin and Hicks drove to the bar.
Fauerbach testified he was in front smoking a cigarette when Ervin arrived. They immediately resumed their argument. After 15 or 20 seconds of yelling and swearing, "both of us loud sporadic profanity," Ervin started flailing at Fauerbach until Hicks and Fauerbach's friend John Hoffstadt separated them. As Hicks tried to push Ervin away from the bar, Ervin pulled out a kitchen knife and held it at her side. She yelled that her car was messed up and demanded $800 or $1000. Fauerbach laughed.
Hoffstadt testified he saw Ervin pull a knife from the waistband of her sweatpants. He pulled Fauerbach away and told Ervin to put the knife away or someone would see her and she would get in trouble. Ervin returned to her car and put the knife in the trunk. Trying to calm everyone down, Hoffstadt followed her to the rear of her car and asked Ervin to show him the damage. After a brief discussion, Ervin drove away.
As Ervin left, Fauerbach heard Ervin say "she was going to go pick up some friends or her boys and come back and light the whole bar up." He went inside and called 911. He explained that two women "just showed up at a bar going crazy" and "said they're coming back with people to shoot the whole dang bar up." While Fauerbach was on the phone, Hoffstadt came in and said Ervin came back and had stabbed Leveni Toki.
Toki testified that he and Fauerbach went to the bar that day planning to rendezvous with Hoffstadt. He drank some beers and went outside for a smoke. Ervin was arguing loudly with Fauerbach and demanding money for damage to her car. Toki told Fauerbach to get her insurance and license information so they could deal with it the following day. A little later Toki was leaning against a car smoking when Ervin "just come out of nowhere" and started punching him in the face. Toki fell to the ground. He testified, "all I know [is] I was stabbed. I didn't see her coming. So fast, I didn't see nothing." He did not remember fighting Ervin, pulling her hair or trying to hit her.
Hoffstadt testified that after the argument between Fauerbach and Ervin he tried to calm Fauerbach down. When he turned around he saw Ervin punching Toki while Hicks tried to restrain her. When Toki fell to the ground Hicks pulled Ervin away from him. Hoffstadt did not see Toki attack Ervin or pull her hair. Ervin said she was going to "go get some guys and they were going to come back and light this bar up and shoot all of us up," then drove away. Hoffstadt ran inside to warn his roommate, then went to his car to wait for him. Within minutes Ervin's car pulled back into the parking lot. Ervin jumped out holding the knife, pushed past Hicks toward Toki and stabbed him. Hoffstadt did not see Toki threaten or provoke her. Ervin and Hicks got into the Camry and sped away.
Ervin testified that she stabbed Toki accidentally while defending herself. From the moment she arrived at the bar, Fauerbach was aggressive. He greeted her by saying "I'm Gary, I'm fuckin' Gary," and both of them "started going back and forth with each other," calling each other "bitches." When Gary "flinched" at Ervin as though to hit her she swung back, but did not land any punches. She had taken a knife with her for safety, so when Hoffstadt approached she pulled it from her sweatpants and held it at her side to let them know she had it.
Hoffstadt told Ervin to put the knife away. Ervin testified she walked over to her Camry, tossed the knife on the passenger seat, not in the trunk, and showed Hoffstadt the damage to the rear of her car. Then Fauerbach said something, like "fuck off" or "bitch," that reignited their fight. Ervin and Fauerbach were swinging at each other when Toki attacked Ervin from behind, pulling her hair and hitting her in the head until Hoffstadt and Hicks separated them. Ervin said she was going to call somebody "to light [Toki's] ass up," but she did not intend to kill him, only to "have some guys come beat him up for attacking me."
Ervin got in her car and started to drive away, but immediately realized her phone was missing and pulled back into the bar's parking lot. Hicks was there talking to Toki. Ervin grabbed the knife "because [Toki] had just attacked me, so I just wanted to be sure. I was scared." She spotted her phone on the ground. As she reached down for it, Toki attacked her again. Ervin turned around and lashed out at him. She was holding the knife with the point toward Toki as she swung at him, but she did not intend to stab him. At Hicks's urging she got back in the Camry and they left. Ervin did not learn she had stabbed Toki until later that night.
Hicks's testimony generally corroborated her daughter's account. She testified she saw Toki grab Ervin's hair and punch her face. After Hicks and Hoffstadt separated them, Ervin said she was going to have someone " 'blow it up' " or " 'shoot it up.' " Hicks told her no one was going to do anything of that nature. Ervin left in her car, then immediately returned for her phone. Toki started screaming " 'Bitch, didn't I tell you not to come around here no more,' " and swung at Ervin. Ervin swung back to defend herself. Hicks separated them and left with Ervin in the Camry. About a week after the incident Hicks gave a Vallejo police detective a substantially similar account.
Ervin was charged with attempted murder and assault with a deadly weapon, with special allegations for her use of a deadly weapon and personal infliction of great bodily injury. The jury acquitted her of attempted murder, convicted her of attempted voluntary manslaughter and assault with a deadly weapon, and found the enhancement allegations were true. Sentenced to seven years in prison, Ervin filed this timely appeal.
DISCUSSION
Ervin contends the court abused its discretion when it prohibited her from impeaching prosecution witness John Hoffstadt with three prior misdemeanor convictions for driving under the influence of alcohol. We disagree.
Background
Prior to trial, defense counsel proposed to impeach Hoffstadt with three misdemeanor DUI convictions suffered in 2009 and 2010. Counsel argued that if Hoffstadt testified as expected that he had been at the bar for several hours but was not under the influence of alcohol when he witnessed the fight, evidence of his "drinking custom and habit" was relevant to "what his experience is relative to his state of sobriety in the past" and his ability to assess whether he was under the influence that night. The prosecutor argued that three DUI's over the course of four years did not establish a custom or habit of getting drunk and that the defense was "just trying to disparage . . . the witness in this case."
The court ruled the DUI convictions inadmissible. "As for allowing the DUIs in and of themselves for custom and habit that request is denied. I don't find it to be relevant on custom and habit theory. It's really character evidence to try to suggest that the witness is either drunk or has a severe alcohol problem, which is improper character evidence and so it would be akin to, if say you had a client who was charged with 11550,[] and they had prior 11550s, those prior 11550s don't come in to show someone was under the influence on this occasion. [¶] So under [Evidence Code] section 352 as well I would exclude it as to the probative value, any probative value, if there is any to draw in an argument that he was at a bar, got prior DUIs, and therefore must have been drinking heavily on this occasion as well. If there is any—I don't find that to be a rational inference. But even if there was any probative value it would be substantially outweighed by the prejudicial effect, undue prejudice in bringing up these DUIs. [¶] And it would be confusing, confusion of the issues here and misleading the jury as well as to any inferences they could draw."
Health and Safety Code section 11550 makes it a misdemeanor to use or be under the influence of a designated controlled substance.
Later during trial Ervin's counsel renewed his request to impeach Hoffstadt with the DUIs to show "the status of this man's sobriety at the time he is observing these things" and "what he is able to remember." The court again disagreed. "The inference to be drawn, again, is purely character evidence. 'You drove drunk on one occasion; therefore, you must have been drunk on this occasion,' and that's improper character evidence. So I've exercised my discretion under 352. I've thought about it under those terms, as well. It is inflammatory. It's unduly prejudicial. Minimal probative value, at best, outweighed by substantial prejudicial effect here."
Hoffstadt testified that he arrived at the bar at 7 p.m. and probably drank one beer before the fight started. On cross-examination, defense counsel brought out his preliminary hearing testimony that he arrived at the bar about ten minutes before Ervin and had drunk about two beers by the time she arrived. He did not recall drinking anything that day before he arrived at the bar.
Analysis
Ervin contends the exclusion of Hoffstadt's prior DUI convictions was an abuse of discretion under Evidence Code section 352 and violated her constitutional trial rights because the evidence tended to prove Hoffstadt was inebriated when he witnessed the fight and, therefore, his perception of the events was unreliable. "Hoffstadt's claim that he was not drinking that day could not be accurately assessed by the jury unless put in the context of Hoffstadt's history of uncontrollable drinking." On the other hand, Ervin contends, the excluded impeachment evidence was unlikely to confuse or mislead the jury and its admission would not have consumed excessive time or caused undue prejudice.
A court has " 'broad discretion' under Evidence Code section 352 'to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (People v. Merriman (2014) 60 Cal.4th 1, 60.) "An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' " (Id. at p. 74; see People v. Vargas (2001) 91 Cal.App.4th 506, 545, 543 [trial courts "have wide discretion in determining the relevancy of evidence"; no abuse of discretion under Evid. Code, § 352 unless court " ' "exceeds the bounds of reason, all of the circumstances being considered" ' "].)
There was no abuse of discretion here, and no violation of Ervin's constitutional rights (see, e.g., People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary evidentiary ruling did not violate right to present a defense]; People v. Gurule (2002) 28 Cal.4th 557, 620 [ordinary rules of evidence generally do not infringe on the right to present a defense; argument that restricted cross-examination violated rights to confrontation, due process, and a fair trial rejected]; People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of defense evidence on a subsidiary point is not a deprivation of due process]). The court reasonably found Hoffstadt's prior DUI convictions had little bearing on his credibility in general or his sobriety on the specific night in question. Under accepted evidentiary principles, proof of a witness's general intemperance tells us nothing of the witness' testimonial capacity "except as it indicates actual intoxication at the time of the event observed or the time of testifying; and hence, since in its bearing upon moral character it does not involve the veracity trait, it will usually not be admissible." (3A J.H. Wigmore, Evidence § 933 (Chadbourn rev. 1970) (citation and footnote omitted); Springer v. Reimers (1970) 4 Cal.App.3d 325, 339 & fn. 8; United States v. DiPaolo (2d Cir.1986) 804 F.2d 225, 230.) The court was also reasonably concerned the proposed impeachment evidence would confuse the issues and impugn the witness on a matter of at most marginal bearing on his credibility. " '[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' " (People v. Ayala, supra, 23 Cal.4th at p. 301.) Its decision to preclude Ervin from impeaching Hoffstadt with his prior DUI convictions was within that broad discretion.
While Evidence Code section 787 no longer requires exclusion of evidence of specific instances of conduct to attack the credibility of a witness, the court still has discretion under Evidence Code section 352 to exclude it. (People v. Ayala (2000) 23 Cal.4th 225, 301.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Pollak, Acting P.J.
/s/_________
Jenkins, J.