Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR479314
GEMELLO, J.
Ronald Lee Keopke, Jr. argues the trial court violated his Sixth Amendment rights and abused its discretion when it excluded evidence he sought to admit to impeach the victim witness. We affirm.
Background
Keopke and Jane Doe were in a dating relationship for ten years. In June or July 2005, Doe broke up with Keopke, but the breakup was “very fuzzy” because she continued to see Keopke every couple of days. Keopke had told her that after their breakup they could either be friends or enemies and she was worried about what would happen to her, her family or her friends if they were enemies.
Keopke called Doe every couple of days after their breakup. If she did not return his calls, he left increasingly angry and frightening messages for her until she talked to him. Beginning in about December, he left “nasty put-down” messageswhen she did not return his calls. From Christmas Eve through Christmas Day of 2005, Keopke left Doe 32 messages. He said that if Doe wanted to play games, it was going to be his game and she would not like it. He said he was going to come by and get his bicycle if she did not call and arrange a time to meet him, so Doe agreed to a meeting. She met him at the end of her driveway and lifted his bicycle out of her car. Instead of taking the bike, Keopke got in the back seat of Doe’s car and shoved open the back door. He said he wanted to talk to her. Doe yelled at him to get out of her car and he did. He left without taking his bicycle. He stopped calling Doe after this confrontation.
On January 2, 2006, at about 9:00 p.m., Doe met two friends at a Christmas tree farm that was closing down for the season. Doe parked her silver Jeep Cherokee in the farm parking lot, which was pitch dark and almost empty. After playing ping pong for about 20 minutes in a lighted tent on the property, Doe walked to her Jeep to look for a sweatshirt. When she opened the rear hatch of her Jeep, the interior lights went on and she heard a car start up behind her. She turned around and saw a car with its lights off coming toward her in reverse. She jumped out of the way and the car smashed into the rear of her Jeep, then sped off to the highway. Doe recognized the car as Keopke’s and saw Keopke driving the car. He was alone. Doe’s two friends, Wittke and Davis, corroborated Doe’s account of the incident at trial.
In his closing argument, Keopke implied that his car accidentally collided with the back of Doe’s Jeep. His girlfriend testified at trial that she was with Keopke during the incident. Keopke had been driving around town looking for Doe so he could talk to her and find out why she was not answering his calls. He spotted her Jeep at the tree farm. He pulled up one or two feet from Doe’s Jeep, shut off the lights and engine of his car, and sat in the car while trying to decide whether to go talk to Doe. After about five minutes, he decided to leave. When he started the car, the clutch slipped and the car lunged backward and hit the back of Doe’s Jeep. No one was near the Jeep at the time of the crash. Keopke got out of his car and walked over to the tent, but when Doe would not come out, he returned to his car and drove away. Keopke’s father testified that Doe told him after the incident that she was inside the tent when the car hit the Jeep. He was impeached with a conviction. Keopke did not testify at trial.
Keopke was charged with assault with a deadly weapon (a car) by means of force likely to cause great bodily injury, a felony (count I; Pen. Code, § 245, subd. (a)(1)); and making annoying phone calls, a misdemeanor (count II; Pen. Code, § 653m, subd. (b)). As to count I, it was alleged that the offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c). The jury found him guilty of both counts. The court denied probation and sentenced Keopke to the three-year middle term for count I and a 90-day concurrent term for count II.
Trial Proceedings
The week before trial the prosecutor provided Keopke with a police report that described an August 2005 assault by Doe on Keopke. The reporting officer responded to a report of a domestic disturbance at Keopke’s residence. Keopke told the officer that Doe entered his residence and began throwing drywall screws at him while he was in bed with Melinda Rawson. Keopke explained that all three were best friends. Keopke reported that Doe was angry with him because he was sleeping with her cousin Rawson. Doe called him a “piece of shit” and then called Rawson a “whore,” spit on them, then walked out the front door. Keopke saw Doe throwing several handfuls of drywall screws at his recently painted Camaro. Before Doe left she told Keopke that if she had a gun she would use it. Keopke reported that he did not feel she was threatening to kill him. Keopke denied having intimate relations with Doe. Charges were never filed for the August 2005 incident.
On April 3, 2006, the first day of trial, the prosecutor filed a motion in limine pursuant to section 352 seeking exclusion of the police report and any other evidence of the August 2005 incident. Keopke argued the evidence should be admitted to impeach Doe because it demonstrated she had a motive to lie at trial in order to exact revenge against Keopke for sleeping with her cousin. The court offered Keopke a continuance to investigate the August 2005 incident, but Keopke declined. The court granted the prosecution’s motion and excluded the evidence because its probative value was outweighed by the undue consumption of time that would be entailed in establishing what occurred August 15, 2005.
Keopke also filed a “Motion to Dismiss and Exclude Evidence Based on Late Disclosure.” He argued the prosecutor violated discovery rules by failing to produce the report 30 days before trial (Pen. Code, § 1054.7) and asked the court to “issue any orders regarding this late discovery that will ensure a fair and just trial for defendant.” The court offered Keopke a continuance so he would have time to investigate the incident. Keopke argued he should not have to waive his right to a speedy trial in order to secure his right to a full and fair trial. “So the remedy should be to exclude evidence or dismiss the case based on this . . . .” The court did not expressly rule on the motion, but did not dismiss the case. Keopke does not argue on appeal that the court erred by not dismissing the case.
On April 4, 2006, Keopke raised the issue again, arguing the evidence was admissible to support a theory that Keopke’s intent when he backed into Doe’s car was to cause property damage to Doe’s car in revenge for the property damage she caused to his car in August 2005, rather than to cause bodily injury as charged. The court denied the motion without prejudice, stating, “I will just make it without prejudice, so that after I have heard some evidence you can ask to revisit it after I have heard evidence that might support that. But right now I don’t have enough to be able to do that.”
Doe later testified that she continued to see Keopke regularly after their breakup and explained she “was trying to keep it as peaceful as possible, because I was always told you are either going to be friends or enemies, and I didn’t want to be enemies. [¶] I was trying to keep the peace and . . . go on with my life.” On cross-examination, defense counsel asked Doe, “You only kept contact with Mr. Keopke because you wanted to keep him happy; you didn’t want to do anything to anger him?” Doe responded that this was correct. Defense counsel asked, “So from June of ’05 to December of ’05 you were trying to appease Mr. Keopke, and you didn’t do anything that might have angered him?” Doe responded, “I never intentionally wanted to do anything to anger him, ever.” Doe denied ever going into Keopke’s house during this period. She testified that she tried to be nice and keep him happy so he would not get mad at her, but arguments did break out at times.
Following Doe’s testimony, Keopke advised the court he intended to call Rawson and the officer who investigated the August 2005 incident as witnesses to impeach Doe. He stated that Rawson would testify about the August 2005 incident in a manner consistent with the police report. She would also testify about an October 2005 incident when Doe became angry that Keopke was with another woman, made a scene at his birthday party and broke glass; and she would testify that Doe did not seem fearful around Keopke after their breakup. The officer would testify about his direct observations of the condition of Keopke’s car on August 15, 2005. Keopke argued the testimony was admissible because it directly contradicted Doe’s testimony that she tried to stay friendly and keep things peaceful with Keopke following their breakup, only maintained contact with him out of fear, and never went into Keopke’s house.
Keopke also moved for mistrial. He argued the prosecution’s late disclosure of the police report prevented him from adequately investigating the incident and locating defense witnesses unless he waived his right to a speedy trial, and he could not receive a fair trial. The court denied the motion. Keopke does not challenge this ruling on appeal.
The court construed Keopke’s comments as a request to reconsider its Evidence Code section 352 ruling. The court ruled: “From what I have heard thus far about the incident, the Court is going to confirm its original ruling with respect to the nature of the relationship. If Ms. Rawson comes in and has contradictory observations as to who broke up with whom and who seemed to be in fear or not, and whether individuals showed up at birthday parties, those are things that the witness Jane Doe testified with respect to, and if there is contradictory testimony on those specific events, then that will be permitted. But the August 15 incident remains excluded.”
The defense rested without calling Rawson or the officer as witnesses. Defense counsel said he was unable to subpoena Rawson in time.
Discussion
Keopke argues that the court erred by excluding evidence of the August 2005 incident, violating Keopke’s Sixth Amendment right to confront the witnesses against him and abusing its discretion under Evidence Code section 352.
I. Sixth Amendment Right to Present Impeachment Evidence
The Sixth Amendment guarantees a criminal defendant’s right to call witnesses on his own behalf and to confront the witnesses against him. (U.S. Const., 6th Amend.; Davis v. Alaska (1974) 415 U.S. 308, 315; Washington v. Texas (1967) 388 U.S. 14, 19.) The confrontation right includes the right to cross-examine witnesses and specifically includes cross-examination for purposes of impeachment. (Davis, at p. 316.) Here, Keopke sought to impeach Doe through the testimony of his defense witnesses that Doe had a motive to lie and that Doe testified untruthfully during the prosecution’s case in chief. (Evid. Code, § 780, subds. (e), (i).)
Trial courts retain wide latitude to impose reasonable limits on a defendant’s impeachment efforts. (People v. Brown (2003) 31 Cal.4th 518, 545; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail an undue consumption of time generally does not violate a defendant’s constitutional rights. (Brown, at p. 545.) A criminal defendant establishes a Sixth Amendment violation only if he can show that the trial court’s exclusion of otherwise appropriate impeachment evidence might have caused a reasonable jury to receive a significantly different impression of the witness’s credibility than it would have received had the evidence not been excluded. (See Brown, at pp. 545-546; Van Arsdall, at p. 680.)
The court ruled that Keopke was permitted to present testimony by Rawson that contradicted “things that the witness Jane Doe testified with respect to,” including “who broke up with whom and who seemed to be in fear or not, and whether individuals showed up at birthday parties.” The ruling allowed Keopke to present evidence that directly contradicted Doe’s testimony that between June and December 2005 she tried to keep peace with Keopke because she was afraid of him, she did nothing to anger him, and she never entered his house.
Keopke argues that by preventing him from questioning Rawson about the August 2005 incident in particular, the court limited the witness’s testimony to generalizations without concrete supporting facts and that testimony might lead the jury to believe he was engaged in a speculative attack on the credibility of Doe, whom the jury might perceive as a blameless victim. The exclusion of the August 2005 incident did not prevent Rawson from providing concrete supporting facts to contradict Doe’s testimony. Rawson was allowed to testify about specific events, including Doe’s behavior at Keopke’s October 2005 birthday party, which contradicted Doe’s testimony and impeached Doe.
Critically, Keopke has not demonstrated that the court’s exclusion of evidence about the August 2005 incident might have left a reasonable jury with a significantly different impression of Doe’s credibility than it would have received if the court had admitted the evidence. (See People v. Brown, supra, 31 Cal.4th at pp. 545-546.) To demonstrate that the court’s ruling had this effect, Keopke compares the impeachment effect of evidence excluded by the trial court (evidence of the August 2005 incident) to the impeachment effect of evidence he actually offered at trial. This is an inapt comparison. The apt comparison is the impeachment effect of the evidence excluded by the trial court (evidence of the August 2005 incident) and the impeachment effect of evidence ruled admissible by the trial court. Keopke did not present the evidence the trial court ruled was admissible. Specifically, he never called Rawson to testify within the parameters of the court’s ruling, which permitted testimony about concrete, specific facts that directly contradicted Doe’s statements on the witness stand.
Keopke claimed he was unable to subpoena Rawson in time, even though the defense received the police report the week before trial, Keopke presumably knew about the incident, and defense counsel spoke to Rawson during the lunch break on the second day of trial.
We are not persuaded that evidence of the August 2005 incident was inherently more damaging to Doe’s credibility than the evidence the trial court ruled admissible. The trial court allowed Rawson to testify to concrete, specific facts that directly contradicted Doe’s testimony that after her breakup with Keopke she tried to keep the peace, did nothing to anger Keopke, and never entered Keopke’s home. According to the offer of proof, Rawson’s testimony would have included a first-hand account of an incident when Doe became upset that Keopke was with another woman, made a scene at his birthday party, and smashed glass in anger. On its face, the proffered evidence about this incident was comparable to the proffered evidence about the August 2005 incident. Testimony about the August 2005 incident would have been cumulative and would not have given the jury a significantly different impression of Doe’s credibility. There was no constitutional error.
Because Rawson did not testify at trial, we of course cannot compare her actual testimony to the evidence excluded by the trial court. We note that, had her testimony turned out to be much less damaging to Doe’s credibility than the likely effect of the excluded evidence, Keopke could have asked the court at that time to reconsider its evidentiary ruling. The court had twice before indicated its willingness to reconsider its ruling in light of the development of evidence at the trial.
Keopke also argues that the trial court abused its discretion under Evidence Code section 352.
Evidence Code section 352 provides, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The trial court enjoys broad discretion in determining whether to admit evidence under section 352 and its exercise of discretion must not be disturbed on appeal unless arbitrary, capricious or patently absurd and resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The trial court reasonably concluded that presentation of evidence about the August 2005 incident would consume an undue amount of time. The police report consists almost entirely of Keopke’s description of the incident. Keopke himself downplayed the alleged personal assault, asking the investigating officer to focus on the vandalism charge. Apparently, it was not until the prosecution’s untimely production of the police report and its subsequent motion in limine to exclude the evidence that Keopke considered investigating what he now argues was a central part of his defense. The officer’s recorded observations offered only limited physical corroboration of the damage caused to Keopke’s vehicle. No charges were filed. There was a substantial probability that Doe would deny the incident and that testimony on the matter would turn into a mini-trial on what exactly happened. Keopke had identified other evidence he could use to impeach Doe (Rawson’s testimony about the October 2005 birthday party incident and about Doe’s general behavior toward Keopke following their breakup). The trial court could reasonably conclude that the amount of time needed to establish what occurred in August 2005 outweighed the probative value of the evidence.
Disposition
The judgment is affirmed.
We concur. SIMONS, Acting P.J., NEEDHAM, J.