Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA285599 Michael S. Luros, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
WILLHITE, J.
The People filed an information charging defendant James Garcia with the first degree murder of Anthony Stafford (Pen. Code, § 187, subd. (a)) and alleging that he used a deadly weapon (a knife) to commit the crime (Pen. Code, § 12022, subd. (b)(1)). Defendant testified at trial and admitted having killed Stafford. The issues for the jury were whether defendant acted in self-defense and, if not, whether he was guilty of a lesser homicide crime. The jury convicted him of second degree murder. The trial court, after finding true various prior conviction allegations, sentenced defendant to a term of 36 years to life.
On appeal, defendant contends that the trial court committed prejudicial error in excluding some defense evidence. He further urges the trial court violated his due process right to a fair trial by asking one question during his (defendant’s) testimony. We find no merit to any of these contentions and therefore affirm the judgment.
STATEMENT OF FACTS
1. The Prosecution Case
This crime occurred on skid row where defendant, the victim, and all of the percipient witnesses lived. The homicide has a racial subtext. The victim (Anthony Stafford) and his friends are African American; defendant and his former codefendant Elizabeth Cruz are Latino.
Initially, Cruz was jointly charged in the information with Stafford’s murder. She reached a negotiated disposition before defendant’s trial began. She did not testify at the trial. CALJIC No. 2.11.5 (“Unjoined Perpetrators of Same Crime”) was submitted to the jury.
On the evening of June 17, 2005, Stafford visited Thirman Scott. The two men smoked crack cocaine. After about 30 minutes, Stafford left to visit James Sinclair and Angela Dawkins. He asked for a cane he had lent Sinclair. Sinclair gave Stafford the cane. Stafford told them he had “stashed” some drugs in the Skid Row area where “[t]he Mexicans hang out at.” The two told him to go and retrieve the contraband. Stafford asked Sinclair to walk with him because “they are watching me” but Sinclair declined to accompany him. Stafford, holding his cane, proceeded down the street.
Stafford met up with a group of Latinos, including defendant and Cruz. An argument ensued. Dawkins heard Stafford yell: “Somebody’s been fucking with my shit. . . . [Y]’all going to give me my shit.” Stafford was waving his cane at the group. Cruz replied: “Fuck that shit. Take that nigger out.” Defendant then fatally stabbed Stafford in the chest. Stafford collapsed. At about the same time, Sinclair heard Stafford yell for him. He approached and saw Stafford swinging his cane at the group and yelling at them. Stafford was bleeding from his chest. Pointing at defendant and Cruz, Stafford told Sinclair: “Help me. We have to get them. They got me. . . . That bitch told them to get me.”
Defendant and Cruz walked away from the scene; Cruz had a bicycle. Scott asked Cruz what had happened. She replied: “He [Stafford] started it, [he] asked me about the bike.”
Three days later, the police arrested defendant. After proper advisement and waiver of his Miranda rights, defendant admitted that he had stabbed Stafford. He said the genesis of the homicide was Stafford’s insistence that he be permitted to take a bicycle from the group. He did not know what Stafford “was capable of doing as he was so persistent about taking somebody else’s bike that didn’t belong to him.” Defendant believed that Stafford was “going to do anything to take that bike at all means.” Defendant explained: “I felt my – my life and everybody around us was . . . our life was in danger . . . [b]ecause you don’t’ know what these guys are capable of doing, man. . . . [¶] . . . [T]hose guys are crazy man. . . . He could have left and came back with something and did something.” Defendant believed Stafford “had a weapon” because he had “seen him kind of reaching into his fucking pants and shit like he’s getting ready to do something to somebody. That’s why I felt like I had to do . . . you know what I mean.” But contradicting his claim that he acted in self-defense or defense of others, defendant told the detectives “I don’t even really know why I fuckin’ did what I did, man” and described his stabbing of Stafford as “just one of those reactions,” “just spur of the moment.” Defendant stated several times that he believed the “whole incident would have never happened” if Stafford had not come into someone else’s neighborhood.
A videotape of the interview was introduced into evidence. In addition, the jury was provided with a transcript of the interview.
Defendant did not know who owned the bicycle.
Defendant denied being under the influence of alcohol or drugs during the stabbing.
2. The Defense Case
Defendant testified. His explanation for the killing was similar to the one he had given the police but now he added more details. He testified that several months earlier, he had been stabbed while on skid row. He had seen “a lot of bad things happen over there.” He explained that “[m]ost of the people over there are very dangerous.”
On the evening in question, defendant testified that Stafford argued with Cruz because she would not give him her bicycle. Stafford waved an object like a weapon as if he were poised to strike. Defendant could not make out the object because it was dark. Stafford moved his free hand toward his waistband. Defendant believed the threat to himself and Cruz was escalating. Stafford charged towards them. Defendant stabbed him with a knife he carried for protection. Defendant testified that he was “reacting to an incident that [he] felt had gone out of control, and there was no retreating anymore.” Stafford charged at him again. At that point, defendant saw that the object in Stafford’s hand was a cane. (Defendant had not mentioned the cane in his police interview.) Defendant backed away and left the area. Defendant denied that Cruz had told him to stab Stafford.
Contrary to what he had told the police, defendant testified that when he stabbed Stafford, he was under the influence of heroin, crack cocaine, and alcohol.
A defense expert testified that an analysis of Stafford’s blood disclosed the victim had used cocaine within a few hours of his death. The expert explained that the cocaine can cause paranoid activity, irritability and hallucinations.
3. Instructions and Closing Argument
The trial court submitted the pattern instructions about first and second degree murder, voluntary manslaughter, self-defense, defense of others, imperfect self defense, heat of passion killing, and the relationship between voluntary intoxication and specific intent.
Defense counsel’s closing argument sought a verdict of not guilty based upon self defense or a conviction of the lesser included offense of voluntary manslaughter.
DISCUSSION
A. Exclusion of Evidence
Defendant contends that two trial court rulings excluding evidence constituted prejudicial error. We disagree.
1. Factual Background
The first ruling was made when defendant sought to introduce evidence about three prior convictions Stafford had suffered: second degree robbery in 1992, transportation and sale of narcotics in 1994, and petty theft with a prior in 2004. Defense counsel noted that all three convictions involved moral turpitude. He explained:
“It’s the defense’s contention, obviously, that Mr. Stafford was the aggressor in this situation. This is a violent crime. Robbery is a violent crime. . . . [As for the conviction of] transportation and sale of cocaine[,] [t]here’s testimony that this was an argument, at least from the prosecution’s witnesses, that Mr. Stafford was trying to retrieve cocaine that was his, that he had left or was misplaced, when he became the aggressor, went to this area where the Mexicans hang out and started waving his cane and asking for his dope bag and was – that was – I think that would be clearly relevant. Petty theft is also a crime of moral turpitude, which I believe is relevant. I believe all three are relevant in this case.”
The court ruled against the defense. It explained:
“I do recognize that robbery is a crime involving force and fear, a taking involving force and fear. But it was a substantial period of time between that incident and the present. The [petty theft] was far closer, but that does not necessarily bespeak anything involving narcotics or violence or taking beyond a mere – potentially from diminimus to extreme. And finally, the narcotics case, again while this case involves the claim of narcotics, it also involves a claim of a bicycle, and that is a substantial period of time prior. And all of those – I believe the probative value is outweighed by the prejudicial effect, and the motion to admit those prior convictions as to Mr. Stafford is denied.” (Italics added.)
The second contested ruling occurred during defendant’s testimony. Over the prosecutor’s objection, defendant testified that several months before the murder, he had been stabbed on skid row. Defense counsel then sought permission to have defendant show his stab wound to the jury. Defense counsel explained:
“My argument is this, and the court, I think well knows this is an imperfect self-defense argument here. Also, the impression that the threat made was not there, and I think as we come into the state of – I think the court was right in allowing in the fact that he had been stabbed before on skid row, which goes to the reason that he reacted the way he did, which is all a basis of an imperfect self-defense. The reason for showing the jury the stab wound is because why would they believe what he’s saying. He could be making that up as part of his defense and they should see that there’s evidence of – actually that he had been stabbed.”
The court denied the defense request. After noting that it had permitted defendant to testify about the stabbing because that event “would affect his apprehension,” the court explained:
“Well, the only problem here . . . [is that] the victim here had a cane, or arguably a golf club, which are blunt instruments. He did not have a blunt stabbing instrument or instruments capable of cutting. So that if he had had an instrument or instruments at that time capable of inflicting a penetrating wound, I might say that there was merit to your argument, but the cane, such as People have exhibited in People’s 8, I believe with a rubber tip on the end of it – and a walking cane and a golf club are instruments that have grips on one end and a head on the other end. They are not capable of inflicting a stabbing type wound, so the objection is sustained.”
The trial court alternatively characterized the object Stafford had carried as a golf club because Dawkins had initially told the police it was a golf club but later realized it was a cane after seeing it in evidence.
2a. Discussion – Excluding Evidence of Stafford’s Three Criminal Convictions Was Not an Abuse of Discretion
Evidence Code section 1103 permits a defendant to offer evidence of the victim’s character to prove the victim acted in conformity with that character trait. This rule has particular application when a defendant claims self-defense or imperfect self-defense in a homicide prosecution. In that instance, evidence of the victim’s aggressive and violent character as shown by past behavior is admissible. (People v. Wright (1985) 39 Cal.3d 576, 587.) However, the trial court has the discretion to exclude such evidence under Evidence Code section 352 if its probative value is outweighed by the substantial danger of undue prejudice or of confusing the jury or of consuming an undue amount of time. (Ibid.; People v. Stitely (2005) 35 Cal.4th 514, 547, fn. 15.) A trial court’s ruling excluding such evidence is reviewed for abuse of discretion. It will not be reversed on appeal absent a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, there was no abuse of discretion. The convictions for transportation and sale of narcotics and petty theft were not probative of Stafford’s (purported) character trait to act aggressively. In the trial court, defendant made no offer of proof about the facts underlying the two charges. Consequently, we reject as unsupported speculation his argument, made for the first time on appeal, that “[i]t is not uncommon for both types of crimes to be accompanied by weapons, aggression, or intoxication, even if those factors were not fully substantiated or pled out in a given incident.” Further, we reject his claim that Stafford’s “drug conviction corroborated [the defense] theory regarding Stafford’s motive for being the aggressor in this incident—namely, that Stafford was high and seeking to recover his stash of cocaine.” For one thing, the defense theory, first as set forth in defendant’s statement to the police and later in defendant’s trial testimony, was that Stafford was trying to take a bicycle, not drugs. In addition, defense counsel’s closing argument dismissed any claim that the argument was about drugs and, instead, said the conflict was over the bicycle. Further, even to the extent that other evidence (e.g., Dawkins’ testimony) suggested that Stafford went to the area to reclaim drugs, any connection between Stafford’s 11-year old drug conviction and his reason(s) for arguing with defendant and his companions is tenuous at best and, in fact, comes dangerously close to an improper use of character evidence: to portray Stafford as a bad person (e.g., an aggressor) because he had a predisposition to use drugs. Given that the trial court is not required to admit evidence “that merely makes the victim of a crime look bad” (People v. Kelly (1992) 1 Cal.4th 495, 523) and that the prosecution is accorded the same protection that the defense enjoys from the use of prejudicial evidence having little probative value (People v. Love (1977) 75 Cal.App.3d 928, 939), the trial court’s rejection of this evidence was not an abuse of discretion.
In the trial court, defense counsel argued the convictions were relevant because they demonstrated moral turpitude. While that may be true, that principle is only relevant when a witness or hearsay declarant is impeached with a criminal conviction. (Evid. Code, §§ 788, 1202; People v. Castro (1985) 38 Cal.3d 301.) But here, the prosecution offered no hearsay statements from Stafford. Hence, Stafford could not be impeached.
While the robbery conviction may have had some tendency in reason to establish inferentially that Stafford had a character trait for aggressiveness or violence, the conviction was very old. Stafford was convicted 13 years before the stabbing. The older the conviction, the less probative value it has because, as time passes, the inference that the individual still possesses the character trait suggested by the conviction becomes weaker. In addition, the defense presented none of the facts underlying the conviction, facts which could shed light on Stafford’s role in the robbery and whether his conviction was or was not strongly probative of an aggressive or violent nature. Given the dubious value of the evidence and the potential for unduly prejudicing the prosecution’s case, the trial court did not abuse its discretion in excluding it.
2b. Discussion – Prohibiting Stafford From Showing His Scar to the Jury Was Not an Abuse of Discretion
Defendant next urges that the trial court’s ruling denying his request that he be permitted to show his stab wound to the jury was an abuse of discretion. We disagree. Before making that ruling, the trial court had, over the prosecutor’s objection, permitted defendant to testify that one of the reasons Stafford’s conduct scared him was that two or three months earlier, he had been stabbed while on skid row. This ruling permitted the jury to hear and consider evidence relevant to evaluating defendant’s state of mind at the time of the stabbing. Contrary to what defendant argues, permitting the jury to view his scar would not “have tended to corroborate that account.” The scar, in and of itself, would not have corroborated defendant’s testimony that he had been stabbed (as opposed to having been injured in another way), that that the stabbing occurred on skid row (as opposed to elsewhere), or that the stabbing took place only a few months prior (as opposed to much earlier). The probative value of the evidence (viewing the scar) was therefore very weak and the evidence could have unduly created sympathy for defendant on an issue not relevant to the charged offense. In sum, the trial court’s ruling was not an abuse of discretion.
During cross-examination, defendant reiterated this point when he testified: “I’ve seen a lot of bad stuff happen there.” “I’ve spent the night over there and I woke up in the morning where I’ve seen knife fights and stuff like that.”
During the sidebar conference about this evidence, defense counsel stated that he had defendant’s “medical records” but made no offer of proof as to what the records would establish. Defendant has not pursued that point on appeal. In any event, an attempt to introduce the records into evidence would have resulted in undue consumption of court time since the records would have had to be authenticated, interpreted, and redacted of irrelevant matter.
2c. Discussion – The Trial Court’s Two Evidentiary Rulings Did Not Violate the Federal Constitution
Recasting his contention of evidentiary error in constitutional rubric, defendant next contends that the two rulings excluding the defense evidence violated his federal constitutional rights to present a defense and to be accorded due process of law. We disagree. Defendant’s failure to raise in the trial court any claim of a violation of federal constitutional rights constitutes a forfeiture of that claim. (People v. Hart (1999) 20 Cal.4th 546, 617, fn. 19; People v. Crittenden (1994) 9 Cal.4th 83, 135, fn. 10; People v. Benson (1990) 52 Cal.3d 754, 788.)
Even if the federal constitutional claim had been raised in the trial court, we would find no error because, as explained above, the evidence was properly excluded under state law. (Crane v. Kentucky (1986) 476 U.S. 683, 690 [a state has the power to exclude evidence through application of rules of evidence that serve the interests of fairness and reliability even if the defendant would prefer to see the evidence admitted]; People v. Robinson (2005) 37 Cal.4th 592, 626-627 [a proper application of the rules of evidence does not impermissibly infringe on the constitutional right to present a defense].)
2d. Discussion – Any Error In Excluding the Evidence Was Harmless
Lastly, even were we to find that the trial court erred in excluding the defense evidence, any error was harmless. The trial court’s application of Evidence Code section 352 “does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard” set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Marks (2003) 31 Cal.4th 197, 227.)
Contrary to what defendant suggests, much evidence was presented to support his claim of self-defense or imperfect self-defense. The prosecution’s case-in-chief included the videotape of the police interview of defendant, conducted three days after the crime. In it, defendant admitted that he had stabbed Stafford but claimed self-defense. By viewing the videotape, the jury had ample opportunity to evaluate the credibility of a self-defense claim made shortly after the events in question. Further, defendant testified at trial and amplified this claim. In addition, defense counsel’s closing argument relied upon testimony given by the prosecution witnesses to support the defense claims that Stafford had been the aggressor and that Stafford’s actions put defendant in reasonable fear right before the stabbing. This included their testimony that Stafford had sought out his cane before he went to the Latino area; that Stafford wanted others to accompany him to the Latino area; and that Stafford was yelling and shaking his cane at defendant and his companions. Lastly, the defense presented expert testimony that Stafford was under the influence of cocaine at the time of the stabbing and that cocaine can cause an individual to act in a manner consistent with how defendant described Stafford’s conduct (e.g., angry and paranoid). In rejecting the defense claims of self-defense and imperfect self-defense, the jury implicitly found that defendant’s testimony—the key evidence on the issue—was simply not credible. Given that the record contains substantial evidence that defendant killed Stafford in response to a directive from Cruz and not as the result of any belief in the need to defend himself or others, it is not reasonably probable that a more favorable result would have occurred (either acquittal of second degree murder or conviction of voluntary manslaughter) had the jury learned of Stafford’s prior convictions or viewed defendant’s scar, evidence, which as explained above, had dubious relevance.
The prosecutor’s rebuttal argument repeatedly urged the jury to carefully scrutinize the videotape to accurately determine defendant’s state of mind at the time of the killing.
After the jury found him guilty, defendant moved for a new trial. He urged the evidence was insufficient to sustain a conviction for second degree murder. Alternatively, he asked the trial court to reduce his conviction to voluntary manslaughter. The trial court denied the motion. Noting that the jury had deliberated four full days, had asked numerous questions, and requested readback of testimony, the court stated “[t]his was not a precipitous verdict. The jury was . . . given the alternative of manslaughter. The jury made their findings as to the credibility of the witnesses and the conflicts in the evidence. [¶] I also made my consideration as to the credibility of the witnesses and the conflicts in the evidence. I do not believe that the credibility of the witnesses, conflicts in the evidence were so unbelievable as to render the verdict such that I would substitute my judgment for that of the jury. The jury’s verdict is supportable by the evidence and the law, . . . so the motion for new trial is denied. The motion for the court to reduce the charge to manslaughter either under Flannel or its progeny or under the arguments set forth in the [new trial] motion is denied.” (Italics added.)
Given that the prosecutor never suggested, either in her cross-examination of defendant or her closing argument, that defendant had fabricated the claim that he had been stabbed on skid row several months before the killing, defendant’s scar was, by itself, clearly irrelevant evidence.
B. The Trial Court’s Question to Defendant
1. Factual Background
After the prosecutor concluded her cross-examination of defendant and defense counsel stated he had no redirect examination, the court said it had one question to ask defendant. Defense counsel did not object. The following colloquy then occurred:
“THE COURT: If you felt that Mr. Stafford just by gesturing was posing a threat to [Cruz] and everyone there, and you felt it necessary to stab Mr. Stafford, what did you do as Mr. Stafford charged you, stepped towards you, and you saw he had a weapon in his hand, what did you do then?
“[DEFENDANT]: I backed up.
“THE COURT: Backed up. Okay.
“[DEFENDANT]: I backed up.”
The court then gave both counsel an opportunity to ask further questions. Neither did. Nor did defense counsel raise any objection to the above exchange.
2. Discussion
Defendant contends: “The trial court’s inquiry of [him] on a matter already answered amounted to an expression of judicial bias in violation of federal due process.” (Capitalization and boldface omitted.)
Defendant’s failure to raise any objection in the trial court to the judge’s question results in a forfeiture of his contention. “‘It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred.’ [Citation.]” (People v. Raviart (2001) 93 Cal.App.4th 258, 269.)
In any event, there is no merit to defendant’s claim. The trial court has both the discretion and the duty to ask questions of witnesses to elicit material facts or to clarify confusing or unclear testimony. (Evid. Code, § 775; People v. Cook (2006) 39 Cal.4th 566, 597.) As long as the questioning is temperate and nonargumentative and does not create the impression that the court is allying itself with the prosecution, there is no judicial misconduct. (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.) Here, the judge’s question was neutral (“What did you do?”) and simply sought to identify what defendant did when Stafford approached him with a cane. This was a legitimate inquiry even if it had already been covered in direct and cross-examination. In any event, to the extent that defendant argues that the court’s question resulted in undue emphasis of that particular testimony, any such potential problem was cured by the court’s submission of CALJIC No. 17.30 (“Jury Not To Take Cue From The Judge”), an instruction the jury presumptively followed. (People v. Harris (2005) 37 Cal.4th 310, 350.) Further, the prosecutor never referred to the court’s question in closing argument.
Defendant’s claim that he was the only witness that the court questioned is false. The court also asked questions of six other witnesses, five prosecution witnesses and defendant’s expert witness.
The instruction explains: “I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion.”
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.