Opinion
A154053
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. BYRON GOMEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN228038)
Byron Gomez was convicted of committing four assaults, two with a deadly weapon, and was sentenced to a six-year prison term. On appeal he contends he was denied a fair trial because of the erroneous admission of gang-related evidence and the erroneous exclusion of evidence regarding the immigration status of prosecution witnesses. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The August 2017 Fight
In August 2017, Marvin M. lived in an apartment in San Francisco's Mission District with his brother Cesar, Cesar's wife Aleyda, another roommate named Victor and Victor's wife Emma. On the evening of August 18, Marvin left work at around 11:00 p.m., used BART to commute home, exited the Mission Street station and began walking on 16th Street toward his apartment. He was wearing red and black Adidas shoes.
When Marvin crossed the street at South Van Ness he saw Gomez, whom he recognized from that neighborhood but did not know. Gomez was with two men Marvin did not recognize. They began shouting at Marvin; Gomez shouted " 'Hey, asshole' " in Spanish. Marvin had his headphones on and did not respond, but as he continued to walk he realized the men were following him and started to walk faster. The group grabbed Marvin and tried to pull him to the ground, but he managed to get away and ran. By the time Marvin reached the block where he lived, the group caught up and surrounded him. Cesar happened to be in his car with Aleyda, parked outside their apartment, and realized that Marvin may have been in a "dangerous situation," so he honked his horn. Then Gomez pulled a silver knife from his pocket and opened it to be a nine-inch knife.
Meanwhile, Cesar and Aledya got out of their car and approached the group. Cesar asked what was going on. Gomez responded that Marvin was wearing red shoes and accused him of being a gang member, which was not true. Cesar told Gomez that the shoes had nothing to do with it, asked what the problem was and threatened to call the police. Gomez responded that he "didn't give a fuck about the police," that they took orders from him. Nevertheless, Cesar told Alyeda to call the police, thinking that would make the group leave. Instead, Gomez attacked Cesar with the knife, attempting to stab him in the face or chest, while his cohort punched Marvin, hitting his back and shoulder. Aledya was calling the police on her cell phone when the third man pushed her to the ground causing her to hit her head.
Cesar found a piece of wood that he used to try to defend himself, but he dropped it and then fell to the ground as he was backing away from Gomez. Meanwhile, Gomez made quick stabbing motions with the knife, which cut Cesar's left index finger before he fell down. Gomez kicked Cesar, continued to try to stab him, and said he was going to kill him. Cesar did not hit back, but tried to defend himself. Eventually, he got up and ran into a bar. Gomez tried to follow. The patrons kept him out, but did not offer to help Cesar, who went back outside when he saw that Gomez was going after his roommate, Victor.
Victor had come out of his apartment building and began to help his roommates. So Gomez attacked Victor, stabbing him with the knife and kicking him. Victor fell backwards, and Gomez stood over him trying to stab him several more times. Victor used his hands and feet to defend himself, but he was seriously injured. Victor noticed another man besides Gomez had a knife, but it was Gomez who knocked Victor to the ground and attacked him with his knife, stabbing him three times in the leg. Gomez held Victor down with his knee and said " 'Don't you move, you son of a bitch.' " He tried to stab Victor in the chest, but Victor blocked the knife and was stabbed in the hand as he managed to disarm Gomez temporarily. After Gomez retrieved his knife, Victor thought that Gomez and his friend had left, but then Gomez returned with another person.
By the time police arrived, Gomez and friends were gone. However, a few days later, Aleyda saw Gomez on 16th Street and Mission. She called the police and Gomez was arrested. He was wearing a blue Cal football jersey with the number 13 and was carrying a pocket knife. San Francisco Police Sergeant Scott Lau was assigned to investigate the case. Lau, a member of the Latin gang section of the police department's gang task force, took statements from the victims and also looked for other witnesses, but did not find any. As part of his investigation, Lau inspected Gomez for tattoos and discovered three: the letter M on his shoulder; a three-dot symbol on his chest; and a faded picture of a devil's horns on his thigh.
II. The 2018 Jury Trial
In February and March of 2018, Gomez was tried on five charges: three counts of assault with a deadly weapon other than a firearm (Pen. Code § 245, subd. (a)(1)), against Marvin, Cesar and Victor respectively; one count of making criminal threats against Cesar (Pen. Code § 422); and one count of assault with force likely to cause great bodily injury against Aleyda (Pen. Code § 245, subd. (a)(4)). The assault charge involving Victor included an enhancement for personal infliction of great bodily injury and the criminal threats charge incorporated an enhancement for personal use of a dangerous or deadly weapon.
A. The Prosecution Case
The prosecution presented evidence about the August 2017 incident through the testimony of the four victims. Sergeant Lau testified about the police investigation and also offered expert testimony as the People's gang expert.
Lau testified there is a significant Latin gang problem in the city's Mission District caused by two primary rivals, the Sureños and the Norteños. The Sureños claim territory covering parts of Dolores Park, bordered by 16th Street, Mission Street, and Franklin Square Park. They identify with the color blue, the number 13 and a three-dot symbol. MS-13 is a gang with roots in the Salvadoran immigrant community that falls under the umbrella organization of the Sureño gang and associates with the Mexican Mafia within the prison system. The number 13 in MS-13 reflects the fact that M is 13th letter in the alphabet. MS-13 members identify with the symbol of devil horns, which is displayed with a hand sign. When this symbol is worn as a tattoo, it signifies that the person committed violence to get it. The Norteño gang identifies with the color red and the number 14, and also claims territory in the Mission District, in the area south of 21st Street.
Lau testified that the Norteño and Sureño gangs are rivals who commit violence against each other. They target rival gang members based on clothing, colors worn, and tattoos. Typically, the gang will "check[]" a young Hispanic male in their territory, by asking where the person is from and inspecting his clothing for gang colors. In Lau's experience, both gangs will violently attack a person in their territory who claims not to be a gang member but is wearing the color of a rival gang. The Mission District gangs, in particular, are very territorial, controlling their respective areas through violence, intimidation and fear.
Lau testified that in his opinion Gomez is a member of the MS-13 subset of the Sureño gang. Lau based his opinion on Gomez's tattoos and his conduct in the present case. According to Lau, the August 2017 incident was "a very classic gang kind of confrontation," similar to hundreds of other gang-related incidents that he has investigated. The conflict was initiated in Sureño territory because of the perception that the victim—Marvin—was a rival, given the color of his shoes. Lau testified that circumstances surrounding Gomez's arrest were further indications of gang membership. Gomez was found hanging around in Sureño territory where he did not live, and he was wearing a number 13 blue jersey, which is a Sureño symbol and color.
B. The Defense Case
The defense presented testimony from two percipient witnesses of the August 2017 incident. Ella T. testified that she was at the Wooden Nickel bar on the night in question. She was sitting at the bar playing a card game when a commotion erupted outside. Ella recalled that things happened very fast as she watched through the open door and then through the bar windows. Three or four people were running with knives, trying to stab each other and exchanging words in Spanish, which she did not understand. A woman carried a kitchen knife and the other people with knives were men. Ella saw a man attack another man with a trunk-sized piece of wood that looked very heavy. Also, a group of people gathered around one man who was on his knees trying to defend himself. At one point, that man ran into the bar, trying to get away from his attackers.
Elaine G. testified that she was outside on South Van Ness Avenue having a cigarette when she noticed a commotion in front of the Wooden Nickel. Elaine heard a woman yell " 'stop' " or " 'don't,' " and then she saw two men involved in what appeared to be an altercation. One man was hitting the other with a large board. She saw the man get hit in the front and back of the head and she heard a thumping sound of the board making contact with his body. Elaine testified that she was scared, it was very dark, and the incident happened quickly. She could not see if the men had weapons or if the man who got hit with the board was fighting back. She did not see anybody carrying a knife.
The defense also presented gang-related evidence through its expert, Joshua Mason, a former Norteño gang member, with 10 years of experience working on gang intervention and violence prevention projects. Mason described the formation of the Mexican Mafia and MS-13, their connection to the Sureños, and the Sureños rivalry with the Norteños. He also testified about the Mission District territories claimed by these gangs, and the importance of maintaining control in those areas.
Mason was asked about a hypothetical incident that mirrored the circumstances of the August 2017 incident. He testified that it was not possible to determine whether the attacks were committed for the benefit of a gang. According to Mason, if a comment about a person's red shoes was a gang reference, it would not make sense that the attackers did not injure that person, but instead attacked other individuals. Mason was also asked about Gomez's tattoos and opined they were not indicative of active membership in a gang. Mason opined that the stand-alone M had no gang significance, the three dots were too small to be significant, and the tattoo of the devil's horns was so faded that it could actually offend a gang member. Mason had been told that Gomez was eight years old and living in El Salvador when got his tattoo of the devil's horns. This tattoo suggested that Gomez may have been associated with the MS-13 gang in El Salvador, where people as young as eight join gangs, often under duress.
Under cross-examination, Mason was asked about tattoos of the numbers 2 and 0, which could be seen on the fingers of one of Gomez's hands as he sat in the courtroom. Mason did not associate the number 20 with MS-13, did not know why Gomez got these tattoos, and opined that they did not necessarily reflect a gang affiliation because there can be cultural reasons for getting this type of tattoo.
C. Rebuttal
Sergeant Lau testified that when Gomez was arrested in August 2017, he did not have any tattoos on his hand. The fact that he had the numbers 2 and 0 tattooed on his fingers reinforced Lau's opinion that Gomez is a member of MS-13 because the number 20 is a "set specific tattoo" for the 20th Street subset or clique of MS-13 gang members in San Francisco. Lau opined that by obtaining the tattoo while he was incarcerated in connection with the August 2017 incident, Gomez demonstrated an even greater commitment to his gang.
III. Closing Arguments and Jury Verdicts
The prosecutor argued that the trial evidence established that Gomez was guilty of all charges. Gomez challenged Marvin for wearing red shoes and when Marvin did not respond appropriately he escalated the conflict by pulling a knife. The prosecutor argued that Gomez was a MS-13 gang member and he needed to exert the authority of his gang over the community and gang rivals by using force and violence. Cesar and the other victims got in the way, so Gomez and his cohorts attacked them too. According to the prosecutor, the man with the red shoes was always the target but the other victims got in the way. When they chose to question or oppose Gomez "and his MS-13 goals[,] they too suffered the wrath."
The defense argued that the prosecution witnesses were liars, whose testimony was riddled with inconsistencies and implausible claims, making it impossible to make sense of what happened during the August 2017 incident. Defense counsel further argued that Sergeant Lau was not credible because he failed to interview neutral witnesses and he based his opinions about gangs on second-hand information, unlike Joshua Mason, who had real-life experience with gangs and then turned his life around and became a real expert. Finally, counsel argued that testimony from Elaine and Ella showed that Gomez was attacked with a wooden board, which gave him the right to self-defense. Thus, defense counsel requested that the jury find Gomez not guilty of all the charges.
The jury deliberated for approximately two days and submitted eleven questions before reaching a verdict. Gomez was found guilty of committing assault with a deadly weapon upon Cesar and upon Victor. The allegation of causing great bodily injury to Victor was found true. However, the jury found that Gomez was not guilty of the felony assault charges pertaining to Marvin and Alyeda, but was instead guilty of the lesser included offenses of simple assault as to those victims. Finally, Gomez was found not guilty of making a criminal threat against Cesar.
DISCUSSION
I. Gang Evidence
Gomez contends that gang-related evidence admitted at trial was irrelevant and so unfairly prejudicial that it deprived him of a fair trial. "A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (People v. Avitia (2005) 127 Cal.App.4th 185, 193; see also People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
A. Background
The admissibility of gang evidence was the subject of competing motions in limine. The People moved to admit expert opinion testimony from Sergeant Lau regarding the significance of colors and numbers as they relate to rivalries between the Norteño and Sureño gangs. (Evid. Code § 802.) The defense moved to exclude all gang evidence on the ground that it was more prejudicial than probative (Evid. Code § 352) and improper character evidence (Evid. Code § 1101).
At an Evidence Code section 402 hearing, the prosecutor argued that Lau's expert opinions were admissible to establish a motive for the charged crimes, that the reason Gomez attacked Marvin and his friends was because Marvin wore red shoes in Sureño territory. Defense counsel disagreed, arguing there was insufficient evidence Gomez was a gang member or that gangs had anything to do with this case.
The trial court granted the People's motion to admit Lau's expert opinions, reasoning that motive was a factor tending to show the defendant's guilt even if it was not an element of the charges, that the significance of such issues as wearing red in a gang area was beyond the common experience of most jurors, and that Lau was qualified to offer expert opinions on gang issues.
B. The Evidence Was More Probative Than Prejudicial
Gomez first contends that gang evidence was irrelevant because the prosecutor "elected" not to charge a gang allegation or gang-related enhancement. According to Gomez, absent a "connection" between Gomez's gang status and the charged offenses, evidence of his possible membership in the MS-13 and Sureños street gangs, as well as the historical underpinnings of these gangs, was erroneously admitted.
The absence of a gang enhancement allegation does not establish that gang evidence is irrelevant. In such cases, "evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Here, Lau's expert testimony was relevant because of its tendency to prove why Gomez would attack several people he did not know. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related"].) Lau's opinion that Gomez was a member of the Sureños, and his testimony regarding the implications of the fact that Marvin walked through Sureño territory wearing red shoes, were relevant to help the jury understand why Gomez might be motivated to chase Marvin down and then attack him and the other victims.
Gomez contends that even if Lau's opinions were relevant to establish motive, his testimony should have been limited to that discrete issue instead of allowing him to draw highly inflammatory connections between Gomez and three notorious gangs. In the lower court, Gomez did not seek to limit the scope of Lau's expert testimony, instead taking the position that no gang evidence was admissible. His effort to parse that testimony for the first time on appeal is not persuasive. Lau's testimony was not wide-ranging or gratuitous, but instead provided background information and foundation for his expertise (which defense counsel questioned during closing argument), as well as his specific opinions that Gomez is a member of MS-13 and the Sureños, and that there was a gang-related motive for the charged crimes.
Gomez cites inapposite authority that does not support his claim of error. For example, People v. Bojorquez (2002) 104 Cal.App.4th 335 (Bojorquez) was an appeal following the defendant's convictions for armed robbery and false imprisonment. At the underlying trial, the parties presented conflicting evidence about what happened, with the defendant and a friend testifying there was an innocent explanation for the defendant's presence in the victims' home. Over objection, a police officer testified on rebuttal that the defendant and his witness were affiliated with the same gang and also gave "wide-ranging testimony about gangs' criminal tendencies." (Id. at p. 337.) The appellate court found that evidence of the gang affiliation was admissible for impeachment, but that the "profuse additional testimony about gangs" was unfairly prejudicial because it was irrelevant and highly inflammatory. (Id. at p. 345.)
The present case is materially different from Bojorquez. Sergeant Lau was not just a rebuttal witness; his expert opinions were admitted as proof of motive, and the background information he provided established the foundation for those opinions. " ' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." ' " (People v. Samaniego, supra, 172 Cal.App.4th at p. 1168; see also People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Finally, Gomez argues that the court compounded the prejudicial impact of Lau's testimony by allowing him to testify about MS-13's connection to the Mexican Mafia. According to Gomez, the only purpose of this testimony was to inflame the jury against him by connecting him to this notorious prison gang. We disagree; the purpose of this testimony was to illustrate the breadth and influence of gang associations, which extend into the California prison system. This evidence was also relevant to explain why Gomez's decision to get tattoos of the numbers 2 and 0 while he was in prison was another indication of his gang allegiance.
C. Lau's Opinions Were Admissible or Not Prejudicial
Taking a different tack, Gomez contends that Sergeant Lau's testimony included two opinions that are not proper subjects of expert testimony.
"Opinion testimony is generally inadmissible at trial. (Evid. Code, §§ 800, 801.) Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is '[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45, italics omitted.) The " 'decisive consideration' " is whether the subject matter " 'is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (People v. Chapple (2006) 138 Cal.App.4th 540, 547.)
Here, Gomez first contends that the trial court erred by admitting Sergeant Lau's opinion that a young Latin man would be "checked" for wearing red shoes in Sureño gang territory. According to Gomez, gang culture and practices in the Mission District are improper subjects of expert opinion because they are common knowledge and thus a lay witness, such as one of the victims, could have testified competently about the risk of angering a gang member by wearing red shoes in the Mission District. This argument is inconsistent with settled law holding that " 'the culture and habits of criminal street gangs' " are not matters of common knowledge but instead involve concepts beyond common experience, which are a proper subject for expert testimony. (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang); see also People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 [collecting cases].) In light of this authority, the trial court did not abuse its discretion by concluding that Lau's opinion would assist the jury in determining whether there was a gang-related motive for assaulting the victims in this case.
Gomez's second argument is that Lau offered the improper expert opinion that Gomez was guilty of the assaults he was charged with committing. Gomez forfeited this claim of error by failing to object when this allegedly improper opinion was offered at trial, but we address the issue directly instead of entertaining Gomez's alternative theory that the failure to object constituted ineffective assistance of counsel.
" 'A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] "Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." ' " (Vang, supra, 52 Cal.4th at p. 1048.) This does not mean, however, that an expert may never tailor his or her opinion to address the defendant specifically. (Id. at p. 1048, fn. 4; see e.g. People v. Valdez (1997) 58 Cal.App.4th 494.) " 'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.' [Citations.] ' "[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved." ' " (Valdez at p. 507.)
In the present case, Lau did not testify directly that he believed Gomez was guilty of the charged crimes. However, he did base his opinion that Gomez was a gang member largely on what happened in this case, which he described as a "classic gang kind of confrontation" triggered by the "perception that this victim, Marvin, was a rival." Lau further opined that "they" perceived Marvin to be a rival because he was in Sureño territory wearing red shoes, and "they immediately acted with violence." Gomez contends that this aspect of Lau's testimony was tantamount to an expert opinion that Gomez was guilty as charged. We disagree, even if the better practice would have been for Lau to base his expert opinions on hypothetical questions that tracked the trial evidence. (Vang, supra, 52 Cal.4th at p. 1048.) Lau's testimony established a motive for the crimes and explained how other evidence in the case was consistent with that motive. Lau did not give his personal opinion as to appellant's guilt or innocence.
But even assuming for purposes of appeal that Lau's testimony could be construed as an expert opinion that Gomez was guilty of assaulting Marvin, we would not find that this testimony requires us to reverse the judgment. The erroneous admission of an expert opinion is an evidentiary ruling subject to review for claims of state law error. (People v. Ewing (2016) 244 Cal.App.4th 359, 383.) Reversal is required only if it is reasonably probable the result would have been different if the error had not occurred. (People v. Prieto (2003) 30 Cal.4th 226, 247.) Gomez argues that without Lau's improper opinion that Gomez was guilty, it is reasonably likely the jury would have harbored a reasonable doubt about whether he acted in self-defense. We disagree for two reasons.
First, we seriously doubt that the jury was influenced by Sergeant Lau's apparent belief that Gomez was guilty. Although the jury was instructed to consider the opinions offered by the experts in this case, they were also told explicitly that it was up to them whether to credit those opinions and the factual assumptions upon which they were based. The jury was also instructed that gang evidence was to be considered for only the limited purpose of deciding whether Gomez had a motive for committing the crimes charged, and for no other purpose. On appeal, we presume the jury followed these instructions. (People v. Avila (2006) 38 Cal.4th 491, 575.) Further, the record affirmatively demonstrates that the jury did not simply defer to an expert's opinion that Gomez was guilty but instead reached its own conclusions, asking multiple questions and extensively deliberating. Moreover, the jury did not convict Gomez of all charges, but concluded he committed only simple assaults as against Marvin and Ayala.
Second, Lau's opinions that Gomez was a member of the Sureños and that there was a gang-related motive for committing the alleged assaults were admissible in one form or another. Indeed, if Gomez's trial counsel had lodged an objection when the prosecutor asked Lau how the facts of this case supported his opinions, the prosecutor could have used hypotheticals to elicit the same ultimate opinions from Lau. Lau's admissible opinions along with the percipient witness testimony constituted overwhelming evidence that Gomez was not acting in self-defense when he assaulted the victims in this case.
II. Evidence Regarding Immigration Status of Witnesses
Gomez contends the trial court erred by precluding the defense from cross-examining prosecution witnesses about their immigration status and whether they intended to apply for U visas, which are potentially available to non-citizen victims of a qualifying crime who assist law enforcement authorities in their investigation or prosecution of that crime. (See generally Hyoun Kyung Lee v. Holder (9th Cir. 2010) 599 F.3d 973, 974.)
A. Additional Background
Prior to trial, the prosecution filed a motion to exclude evidence pertaining to the victims' immigration status and interest in obtaining U visas under Evidence Code section 352, arguing it was not relevant to prove or disprove any disputed fact, it was unduly prejudicial, and it could confuse or mislead the jury. In his motion, the prosecutor reported that he had not asked the victims about their immigration status, but he was aware Aleyda had previously been arrested for illegal entry. Moreover, all of the victims had been provided information about the U visa program, but no application had been submitted as of that time.
The defense opposed this motion, arguing that immigration status was relevant to prove that the alleged victims had a motive to lie about the August 2017 incident. Defense counsel further argued that failing to cross-examine the prosecution witnesses about these matters would be ineffective assistance of counsel because the defense theory at trial was going to be that these victims were lying and their precarious immigration status would explain why.
The trial court ruled that the defense could "fully" examine witnesses regarding issues of bias or lack of credibility, except that it could not ask whether they were documented or undocumented. In reaching this conclusion, the court took judicial notice of the federal government's stated policy of using "our courts as a place to find and then arrest and then detain people who are undocumented," a policy that could have a chilling effect by deterring crime victims from reporting crimes or participating in the prosecution of such crimes. Despite this concern, the court found that examining a witness about her interest in obtaining a U visa should be allowed in some cases, such as when there is evidence the complaining witness has sought a benefit of the U visa program. But, in the present case there was no evidence that any of the victims had sought such a benefit. Furthermore, the court reasoned, the defense theory that inconsistencies in the victims' statements undermined their credibility could be presented effectively to the jury without having to question their immigration status.
Ultimately, the court concluded that the prejudicial effect of this inquiry would be so much greater than its probity that it made a "mutual" order prohibiting all counsel from asking any witness if he or she was documented. The court also clarified, however, that it was not finding that evidence of a witness's immigration status should always be excluded under Evidence Code section 352. The determinative factor for the court was that there was no evidence "that the particular benefit of a U visa" was a motivating factor for testifying in this case.
B. Analysis
"The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), 'and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' [Citation.] 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' [Citation.] In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing" (People v. Harris (2005) 37 Cal.4th 310, 337.) Thus, "[a]s a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidence is suggestive of bias." (People v. Brown (2003) 31 Cal.4th 518, 544-545 (Brown).)
However, the defendant's right to cross-examine witnesses is not " 'absolute.' " (Brown, supra, 31 Cal.4th at p. 545.) As our Supreme Court has explained, while " '[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude' [citation], such latitude does not 'prevent the trial court from imposing reasonable limits on defense counsel's inquiry based on concerns about harassment, confusion of the issues, or relevance.' " (Id. at p. 545.) Thus, a proper exercise of trial court discretion under Evidence Code section 352 generally does not contravene the criminal defendant's constitutional rights. (See e.g. People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Mendez (2019) 7 Cal.5th 680, 704.)
In this case, the exclusion of evidence about whether any witness was undocumented was based on reasoned analysis, which supported the trial court's exercise of its statutory discretion under Evidence Code section 352. First, the record supports the trial court's conclusion that the probative value of this evidence was low. The immigration status of the victims was a collateral matter; although potentially relevant to witness credibility, it was not directly relevant to prove or disprove an issue in the case. (See Rodriguez, supra, 20 Cal.4th at p. 9.) Moreover, under the facts presented to the trial court, the connection between immigration status and witness credibility was tenuous as there was no evidence that a complaining witness had sought any benefit associated with the U visa program. Thus, the only conceivable theory of relevancy was that if the witnesses were interested in securing a U visa benefit they would potentially be motivated to testify untruthfully.
Second, the trial court concluded reasonably that the marginal relevancy of this inquiry was outweighed by other factors, especially the potential for unfair prejudice. Admitting evidence of the immigration status of a witness exposes a person who has not been charged with wrongdoing to devastating immigration consequences, and it also risks that sentiments about undocumented immigration will distract jurors from their fact-finding responsibilities. As the trial court also pointed out, requiring a crime victim to testify about his or her immigration status absent some concrete reason to do so could have a chilling effect on the prosecution of crimes and the administration of justice.
Disputing the trial court's ruling, Gomez attempts to show that this issue was much more relevant and much less prejudicial than the trial court found. First, he argues that the immigration status of the victims in this case was crucially relevant to his self-defense claim. According to Gomez, these victims had more incentive than other witnesses to lie about what really happened in order to defeat his self-defense claim because if the jury had determined that the victims were the actual aggressors, then their undocumented status would have resulted in immediate deportation for committing a violent assault. This logic is unsound. The victim witnesses were not on trial in this case and thus the jury could not have convicted them of anything. By the same token, if there was evidence that any of these victims had themselves committed some crime, that was a matter for the district attorney to address regardless of the immigration status of these individuals.
Gomez also contends that the trial court's concerns that revealing the immigration status of a witness might somehow harm the victim personally or inflame the prejudices of the jury were pure speculation, which cannot outweigh his constitutional trial rights. We disagree that these concerns are speculative. Indeed, a few months after Gomez's jury trial was completed, the California Legislature enacted Evidence Code section 351.4, which prohibits disclosure of a person's immigration status in open court in any criminal action "unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person's immigration status." When this statute was enacted, the Legislature found that "[i]n order to immediately help protect undocumented residents of California and their ability to participate in the California justice system, it is necessary that this act take effect immediately." (Stats. 2018, ch. 12, § 3.) Although it was not in effect at the time of this trial, the Legislature's decision to adopt this statute reinforces our conclusion that the trial court's assessment of the prejudicial effect of this evidence was sound.
Gomez cites non-binding authority for the general proposition that a witness's U visa status is admissible as impeachment in order to protect the defendant's constitutional rights to a fair trial. (Romero-Perez v. Commonwealth (Ky.Ct.App. 2016) 492 S.W.3d 902; State v. Valle (Or.App. 2013) 255 Or.App.805; State v. Perez (S.C. 2018) 423 S.C. 491; State v. Hernandez (Or.App. 2015) 269 Or.App.327; State v. Huerta-Castro (N.M.App. 2016) 390 P.3d 185, 198-200.) With the possible exception of State v. Hernandez, all of these cases involved witnesses whose applications for U visas were pending when they testified at the defendant's trial. As noted, the absence of this type of evidence was a key factor for the trial court in the present case. In State v. Hernandez, supra, 269 Or.App.327, a defendant charged with harassment and sexual abuse claimed that the victim had fabricated her claims in order to extort money from him and to secure a U visa from the government. (Id. 328-329.) These are the kind of factual circumstances that could make evidence of a witness's immigration status more probative than prejudicial. However, there is no basis in this record for suspecting that complaints were made against Gomez so that the complaining witnesses could obtain U visas.
Gomez attempts to invoke the rule that "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to present all relevant evidence of significant probative value to his defense." (Quoting People v. Reeder (1978) 82 Cal.App.3d 543, 553, italics omitted.) He ignores the corollary rule that a defendant does not have "a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be" (Ibid.) In other words, the pivotal question is whether the immigration status of these witnesses had such probative value that the trial court had no discretion to exclude it. We think not, for all the reasons outlined above.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.