Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super Ct. No. NA072155. Tomson T. Ong, Judge.
Lenore De Vita, 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, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Dwain Edward King appeals from the judgment entered upon his conviction by jury of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The trial court found to be true the allegations that defendant has suffered a prior felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and six prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced defendant to 12 years in state prison. Defendant contends that (1) the trial court erred in refusing to allow him to have a full and fair cross-examination of a key prosecution witness, thereby violating his state and federal constitutional rights to present a defense and confront the witnesses against him; (2) his state and federal constitutional rights were violated by the giving of erroneous jury instructions on: (a) reasonable doubt in accordance with CALCRIM No. 220, (b) the definitions of direct and circumstantial evidence in accordance with CALCRIM No. 223, (c) the sufficiency of circumstantial evidence in accordance with CALCRIM No. 224, (d) determining the credibility of witnesses in accordance with CALCRIM No. 226, (e) the lack of a requirement to produce all witnesses and physical evidence in accordance with CALCRIM No. 300, and (f) defendant’s right not to testify in accordance with CALCRIM No. 355; (3) the instructional errors were individually and cumulatively prejudicial, depriving defendant of due process and a fair trial; and (4) defendant suffered ineffective assistance of counsel, if the instructional errors are found to have been forfeited by trial counsel’s failure to object.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTS
On October 25, 2006, at 10:14 p.m., Long Beach Police Officer Sean Riordan and his partner, Officer Luyben, were patrolling a high narcotics area, near Long Beach Boulevard and 68th Street, City of Long Beach, in a marked patrol car. Officer Riordan saw defendant riding a bicycle south on the Long Beach Boulevard sidewalk. The bicycle lacked a required horn or bell. Officer Luyben pulled the patrol car over, and Officer Riordan approached defendant.
Officer Riordan ordered defendant to stop and come to the patrol car. Instead, defendant turned, looked at the officer and continued south without stopping. He went 15 feet, got off his bicycle, reached his left hand into his left front pants pocket, and walked into the street in front of a parked truck. He then pulled his left hand, clenched in a fist, out of his pocket and made a throwing motion toward the ground. Officer Riordan did not see anything fall.
Officer Riordan detained defendant. Officer Luyben recovered three rocks of a substance subsequently determined to be a usable quantity of crack cocaine from the ground. It is common for people carrying narcotics to discard them when stopped by police, and uncommon to find drugs abandoned in the street.
DISCUSSION
I. Limitation on Cross-examination
At the preliminary hearing, Officer Riordan testified that he noticed defendant riding his bicycle in a business district without a bell or horn. But at the initial trial of this matter, the officer testified that he stopped defendant because defendant’s bike did not have a headlight. He corrected this on cross-examination, after reviewing the police report.
The first trial resulted in a mistrial, the transcript of which is not before us.
At an Evidence Code section 402 hearing before retrial, the prosecutor sought to limit cross-examination of Officer Riordan with respect to his reasons for stopping defendant, arguing that it was irrelevant to the jury as it was an issue related to suppression of evidence which is exclusively within the province of the judge.
Defendant argued that the evidence was not offered to suppress the cocaine evidence, but to establish Officer Riordan’s “. . . ability to observe, his ability to communicate what he observed and his credibility.” He claimed that the evidence was relevant because, at the first trial, Officer Riordan testified that he stopped defendant because defendant had no bicycle light. Only on cross-examination did he acknowledge that he was incorrect. This evidence, defendant claimed, would allow the jury to infer that the officer “either did not see, . . . or did not accurately or correctly see what he testified was the reason for his stop.” This would go to whether or not defendant “actually possessed narcotics.”
The trial court acknowledged that the information regarding the stop was relevant because it reflected on Officer Riordan’s ability “to remember, to recollect, to communicate and to observe.” But it concluded that questions regarding the reason for stopping defendant went to search and seizure issues and were “legal question[s].” Nonetheless, to accommodate defendant’s desire for the testimony for impeachment, the trial court ruled that defendant could ask Officer Riordan what he saw when he stopped defendant, whether he saw a taillight or headlight, or bell, and whether he wrote that in the police report. Defendant could not ask for the officer’s reasons for stopping him because that question was one of law, outside the jury’s purview.
When Officer Riordan took the stand, he testified that the bicycle did not have a bell or horn on it but did have a light. When testifying about his prior testimony, he said that he initially testified that defendant’s bicycle did not have a headlight. He then reviewed the police report and corrected his testimony, testifying that it did have a headlight, not a horn.
In closing argument, defendant’s counsel highlighted to the jury that Officer Riordan was inconsistent. He argued: “If officer Riordan did not recall seeing a bike light, which there is one without a doubt on his bicycle, then how is it he could tell that he did not have a bell or a horn. Even from the beginning, Ladies and Gentlemen, even regarding the testimony of his initial observations of [defendant], Officer Riordan was not being truthful with you. He was biased against [defendant] from the very beginning.”
Defendant contends that the trial court erred in limiting his cross-examination of Officer Riordan. He argues that the questioning permitted by the trial court did not have the same impact as would questioning about why he stopped defendant. The limited cross-examination of Officer Riordan deprived him of his constitutional rights to present a defense and to confront witnesses against him. This contention is meritless.
A. Relevance
We evaluate a trial court’s relevance rulings under the abuse of discretion standard. (See People v. Brown (2003) 31 Cal.4th 518, 577; People v. Kipp (2001) 26 Cal.4th 1100, 1123.) The trial court had broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. (People v. Thornton (2007) 41 Cal.4th 391, 444.)
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code,§ 210.) The question of whether there is reasonable cause for an arrest and search is a question of law for the trial court. (People v. Holmes (1965) 237 Cal.App.2d 795, 797; Evid. Code, § 310.)
For impeachment purposes, defendant wanted to ask Officer Riordan why he stopped defendant. That evidence was relevant to a suppression motion, as it goes to whether the officer had probable cause. It was otherwise irrelevant. The officer’s ability to recall, observations, and prior conflicting testimony regarding the detention and arrest of defendant however were relevant to his credibility. The trial court allowed defendant to inquire of the officer regarding those matters. The relevance line drawn by the trial court was not an abuse of discretion.
Even if the trial court erred in refusing to allow defendant to question Officer Riordan about his reasons for stopping defendant, the error was harmless in that it is not reasonably probable that had it been permitted, defendant would have obtained a more favorable result. (See People v. Heishman (1988) 45 Cal.3d 147, 173; People v. Watson (1956) 46 Cal.2d 818, 836.) On cross-examination, defendant was allowed to probe all of the perceptual deficiencies in Officer Riordan’s recollection of his stop and his misstatements at trial. There is no likely possibility that defense counsel could make a compelling argument of planting of evidence out of Officer Riordan’s mistaken testimony many months after the incident, promptly corrected after reviewing the police report, about a single detail of the incident, about which he correctly testified at the preliminary hearing.
B. Right to present a defense
We also reject defendant’s contention that the exclusion of this evidence prevented him from presenting a defense, thereby violating due process. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level. . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) The touchstone of due process is fundamental fairness. (County of Sutter v. Davis (1991) 234 Cal.App.3d 319, 327; see also People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1250.)
As discussed above, defendant was not precluded from impeaching Officer Riordan. He was permitted to question him about what he observed at the time he stopped defendant and regarding his previous testimony on that point. He was precluded only from questioning on the limited, irrelevant issue of what motivated the officer’s stop.
C. Right to confront witnesses
Trial judges retain “‘wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’” (People v. Ledesma (2006) 39 Cal.4th 641, 705; People v. Cornwell (2005) 37 Cal.4th 50, 95.) Only if the limitation placed on cross-examination produced “‘a significantly different impression of [the witnesses’] credibility,’” does the exercise of discretion violate the Sixth Amendment or the California Constitution. (People v. Frye (1998) 18 Cal.4th 894, 946.)
As we previously concluded, the particular evidence regarding Officer Riordan’s reasons for stopping defendant was marginally, if at all, relevant. Defendant retained his right to confront the officer on cross-examination, fully availing himself of that right. There was therefore no infringement of his constitutional confrontation right.
II. Instructional Errors
A. Contentions
Defendant made no objection in the trial court to any of the jury instructions given. He now challenges many of those instructions, contending as follows:
(1) The reasonable doubt instruction in CALCRIM No. 220 is improper because it implies that the jury may rely on bias against the defendant. He argues that by instructing the jury that it should not be biased against defendant based solely on his being arrested, charged and tried, CALCRIM No. 220 implies that the jury can be biased for any other reason.
(2) CALCRIM No. 223, defining circumstantial and direct evidence, is “confusing and misleading.” He argues that by instructing the jury that both direct and circumstantial evidence are acceptable and “‘neither is entitled to any greater weight than the other,’” CALCRIM No. 223 usurps the jury’s function by limiting its freedom to decide what weight, if any, to give any particular piece of evidence regardless of whether the evidence is direct or circumstantial.
(3) CALCRIM No. 224, instructing on the sufficiency of circumstantial evidence, is misleading and confusing. First, he argues that by stating that if there are two reasonable conclusions from circumstantial evidence, one pointing to innocence and one to guilt, the jury must accept the one that points towards innocence, it inaccurately suggests that this requirement applies only to circumstantial evidence and not to direct evidence, when it should apply to both. Defendant next argues that by couching the jury’s obligation to assess conflicting inferences in terms of “innocence” or “guilt,” CALCRIM No. 224 improperly suggests that the defendant must establish his innocence, when all that must exist is a reasonable doubt as to guilt. Finally, defendant contends that instructing on burden of proof in CALCRIM No. 224 in terms of the jury being “convinced,” dilutes the requirement jurors find guilt beyond a reasonable doubt based on evidence presented by the prosecution. “This is so because a juror can be ‘convinced’ or ‘satisfied’ in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving.”
(4) CALCRIM No. 226, dealing with the credibility of witnesses, is inaccurate. He argues that instead of saying “[p]eople sometimes honestly forget things or make mistakes about what they remember,” the instruction should have continued the language of its predecessor, CALJIC No. 2.21.1, that, “Failure of recollection is common. Innocent misrecollection is not uncommon.” (CALJIC No. 2.21.1 (7th ed. 2003).) According to defendant, “sometimes” reflects a less frequent event than “not uncommon.” Thus, defendant argues, CALCRIM No. 226 “gives the eyewitness a false aura of credibility.”
(5) CALCRIM No. 300, which instructs on the lack of a requirement that all witnesses and evidence be presented, is erroneous insofar as it instructs the jury that the defense need not produce “all” relevant evidence, because it might mislead the jury into believing that the defendant is required to produce “some” evidence,” thereby contradicting the standard burden of proof instruction that defendant has no burden to present evidence or prove anything.
(6) CALCRIM No. 355, instructing on defendant’s right not to testify, implies that the defendant has the burden to “argue” the case against him was not proven. That is, it is up to the defendant to prove that he is not guilty. It implies that in the absence of the defendant arguing, “the defendant concedes the People have proved the charges.” “As given, CALCRIM 355 abridged [defendant’s] rights under the above constitutional provisions by permitting or encouraging the jury to consider and/or to rely on his failure to testify at trial.”
Respondent contends that these claims were forfeited by failing to raise them in the trial court. We agree with respondent.
B. Forfeiture
Generally, “‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) Defendant’s instructional claims dispute the clarity and completeness of the instructions. Such claims are forfeited because they were not preserved for appeal by objection in the trial court. Even if objections had been interposed and these claims preserved for appeal, we would reject them as discussed below.
C. Merits
Each of defendant’s contentions to the challenged instructions is identical to claims made and rejected by the Courts of Appeal in People v. Ibarra (2007) 156 Cal.App.4th 1174 and/or People v. Anderson (2007) 152 Cal.App.4th 919, 944. We agree with the analyses and conclusions of those cases and reject defendant’s instructional claims.
D. Cumulative error
Defendant contends that even if the above discussed instructional errors do not individually warrant reversing his conviction, the numerous errors cumulatively require reversal. This contention is meritless.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) Because we have concluded that there are no instructional errors, it follows that there are no errors to cumulate.
III. Ineffective Assistance of Counsel
Defendant contends that if we conclude that his instructional claims were forfeited because of his trial attorney’s failure to object, then he suffered ineffective assistance of counsel. This contention is without merit.
The standard for establishing ineffective assistance of counsel is well settled. The “‘defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
As the instructions were not erroneous, defendant’s counsel did not provide ineffective assistance in failing to object to them.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P.J., ASHMANN-GERST, J.