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People v. Lacey

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 17, 2003
No. C042525 (Cal. Ct. App. Nov. 17, 2003)

Opinion

No. C042525.

11-17-2003

THE PEOPLE, Plaintiff and Respondent, v. VAL LACEY, Defendant and Appellant.


A jury found defendant Val Lacey guilty of assault with a deadly weapon, making criminal threats, resisting arrest, and being a felon in possession of a firearm and ammunition. The court sentenced defendant to an aggregate term of 18 years 4 months in state prison. On appeal, defendant contends the trial court erred in permitting the prosecution to impeach testimony of his good character with his former convictions. Defendant also claims the court abused its discretion when it denied his motion for a mistrial after a witness testified he was a gang member.

We conclude the trial court did not err by allowing limited impeachment of good character testimony nor by denying a mistrial after immediately striking the improper gang testimony and admonishing the jury to disregard it. Accordingly, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant spent a substantial amount of time at the residence of his girlfriend of five years, Leah Reid. Reid lived in a two-bedroom house with one permanent housemate and many other visitors who used crack cocaine on the premises. Reids residence was referred to as a "crack house" at trial. Tomya Cook, Reids friend, stayed at the house for a few days before April 26, 2002.

On April 26, 2002, Reid received a .22-caliber gunshot wound to her right ankle. After leaving the house, Reid called 911 and told the dispatcher defendant shot her. A deputy sheriff questioned Reid at the hospital about the shooting while other deputies arrested defendant. Reid said she was arguing with defendant about money. During that argument, defendant pointed a rifle at Reid, stated that he should kill her, and then shot her foot. Thereafter, defendant tried to reload, but Reid escaped. Reids hospital report also indicates her boyfriend shot her.

Defendant remained at Reids house until police arrived. It took five or six deputies to subdue him. Upon his arrest, the deputies found a plastic bag of .22-caliber bullets in defendants pocket.

Deputy Sheriff Larry Crisostomo questioned Cook. She told Deputy Crisostomo she was sleeping when she awoke to Reid arguing with defendant. Cook heard Reid say, "baby dont, baby dont," before she heard a "pop" that sounded like a BB gun being fired. Deputy Crisostomo testified Cook kept looking around and hiding from public view during their conversation.

Reids and Cooks trial testimony differed from their earlier statements.

Reid testified she was playing with her .22-caliber rifle all day on April 26, 2002. She claimed she loaded the rifle and threatened to shoot herself in front of defendant because she feared he was going to live permanently with his wife. When defendant grabbed the rifle, Reid accidentally shot herself in her foot. She lied to the 911 dispatcher, Deputy Crisostomo, and the hospital staff because she was angry with defendant.

At trial, Cook testified she heard defendant and Reid arguing, but she denied hearing anything else. She testified she was asleep and that she did not recall telling Deputy Crisostomo she heard specific statements or a pop sound. Cook said she remained asleep during the encounter because she stayed awake during the previous few nights using crack cocaine. At trial, Cook made it apparent that she did not want to cooperate. She said she let her friends know, "I dont tell nothing. I dont know nothing."

Defendant called no witnesses at trial. In connection with the possession charges, the court instructed the jury that defendant is a convicted felon. The prosecution did not offer the nature or circumstances of defendants prior felony convictions for assault with a deadly weapon, possession of rock cocaine, or being a felon in possession of a firearm.

Defendants prior convictions for assault with a deadly weapon, possession of rock cocaine, and being a felon in possession of a firearm occurred respectively in 1986, 1989, and 1993.

DISCUSSION

I

Impeachment of Good Character Testimony with Prior Convictions

A

Good Character Testimony

During direct examination, the prosecution sought to show Cook was afraid of defendant to raise doubt about her failed recollection. On cross-examination, defense counsel asked Cook:

"Q Have you ever seen any firearm involved in any argument between [Reid and defendant]?

"A No.

"Q Have you ever seen [defendant] with a gun?

"A No, Val cool person. Hes way mellow and stuff, until you get— you know, anybody can push up to the point — no, hes a real cool person. I aint never seen him with no knives, guns, no shit like that."

During a sidebar conference before redirect, the prosecution claimed Cooks testimony that defendant is "cool . . . [and] way mellow" constituted good character evidence. The prosecutor wanted to impeach Cooks opinion with defendants prior convictions. The court ruled: "I think that . . . Ms. Cooks statement that [defendant] was a mellow and cool fellow . . . is an opinion that can be cross-examined on. . . . [¶] I think it would be fair to ask her if she knew he has had a past conviction for assault with a deadly weapon, and for being [a felon] in possession of a firearm, would that change your opinion as to whether [defendant] is a mellow and cool fellow." Defendant made a motion to strike Cooks nonresponsive answer to the extent that it expressed a favorable opinion. The court denied defendants motion because Cooks testimony "was kind of infused with that opinion . . . [and] its a little hard to undo."

On redirect, the prosecution asked Cook if knowing about the prior convictions would change her opinion. Cook responded "no" to both questions.

B

Motion to Strike Nonresponsive Testimony

Defendant contends the court should have stricken Cooks testimony of his good character, which then would have made it unnecessary for the prosecutor to impeach that testimony. A court may grant a motion to strike testimony when the witness is not responsive to the question posed. (People v. Mahoney (1888) 77 Cal. 529, 533; People v. Dixon (1892) 94 Cal. 255, 258.) However, a motion to strike testimony must be timely. (People v. Wilson (1926) 76 Cal.App. 688, 707.)

We conclude defendants motion was not timely. (People v. Wilson, supra, 76 Cal.App. at p. 707) Defense counsel did not move to strike the testimony until it became apparent the prosecutor wanted to impeach the testimony. The motion should have been made when defense counsel was questioning Cook. Had the court granted defendants belated motion, it might have had the unintended effect of emphasizing the testimony that defendant is "cool . . . [and] way mellow." It was within the courts discretion to find the witnesss opinion testimony so "infused" in her testimony that it could not be removed at a later time.

C

Impeaching Good Character Testimony

Defendant claims "[t]he court erred in improperly allowing the prosecution to introduce evidence of [his] prior felony convictions." Defendant asserts his prior convictions should not have been admitted because he did not purposefully "offer" good character testimony under Evidence Code section 1102, subdivision (a). We find no error.

A criminal defendant may offer evidence of a relevant trait of his good character to prove he conformed to that character during the charged occasion. (Evid. Code, § 1102, subd. (a).) However, when a defendant adduces testimony of his good character at trial, the prosecution may impeach the testimony or rebut it with the prosecutions own character witness. (Evid. Code, § 1102, subd. (b); People v. Hempstead (1983) 148 Cal.App.3d 949, 954; People v. Clair (1992) 2 Cal.4th 629, 683.)

When a witness expresses an opinion as to the good character of the defendant, "the prosecution must have the opportunity to let the jury test the validity of the opinion or the weight to be given to it by asking whether the holder of the opinion has knowledge of events or acts which have indisputably occurred." (People v. Hempstead , supra, 148 Cal.App.3d at p. 954.) Here, the prosecutions use of defendants prior convictions for assault with a deadly weapon and being a felon in possession of a firearm contradict Cooks opinion of defendants calmness.

"When such cross-examination of a good-character witness is permitted, the jury should be instructed that such questions and answers of a character witness are to be considered only for the purpose of determining the weight to be given to the opinion or testimony of the witness." (People v. Hempstead, supra, 148 Cal.App.3d at p. 954 [CALJIC No. 2.42].) The defendant failed to request such an instruction and he did not raise this issue on appeal. Even so, "[i]n the absence of such a request there was no duty upon the trial court to instruct the jury that the rebuttal testimony was admissible solely for the purpose of impeaching" Cooks testimony. (People v. White (1958) 50 Cal.2d 428, 430-431.)

If allowing the impeachment of good character testimony "would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude them under Evidence Code section 352." (People v. Hempstead, supra, 148 Cal.App.3d at p. 954.) In this case, the record demonstrates the court performed its obligations under Evidence Code section 352 even though it did not expressly declare it weighed the prejudice against the probative value. (See People v. Mendoza (2000) 24 Cal.4th 130, 177; People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; People v. Riel (2000) 22 Cal.4th 1153, 1187-1188.) The trial court examined the nature and dates of defendants prior convictions. It considered the remoteness of defendants convictions and the years defendant spent in prison. The court precluded the prosecution from "proving up" defendants prior convictions, and the prosecution could not inquire about defendants prior conviction for possession of rock cocaine.

Defendant contends the prosecution had no right to impeach or rebut the inadvertent good character testimony of Cook because he never "offered" character evidence under Evidence Code section 1102, subdivision (a). Not so. Defense counsel adduced Cooks opinion that defendant is "cool . . . [and] way mellow." Under well-established California law, the prosecutor could seek to impeach her opinion of defendants supposedly "mellow" character with acts tending to contradict that impression. (See People v. Clair , supra, 2 Cal.4th at pp. 682-683; see also People v. Ramos (1997) 15 Cal.4th 1133, 1173.) Defendant points to no authority that denies the right of impeachment because good character evidence was inadvertently introduced.

II

Gang Membership Testimony

Before trial, the court excluded any reference to the word "gang." The court stated the "mere reference to the word `gang imposes an emotional response . . . that . . . may lead to additional confusion and consumption of time. . . ." On balance, the court excluded the word from testimony because it prejudiced defendants right to a fair trial more than it was relevant to the case. (Evid. Code, § 352.) The court instructed the prosecutor to admonish the witnesses accordingly.

During direct examination, Deputy Crisostomo testified Cook "pretty much said that she shouldnt be talking to us, and that she was afraid of [defendant], and that [defendant] was a gang member and that she was scared." The response was immediately stricken from the record and the court admonished the jury "to disregard the last answer, and dont consider it for any other [sic] purpose."

III

Denial of the Mistrial Motion

Defendant moved "for a mistrial based on the representation that [defendant] is a gang member" because it was "extremely prejudicial" and it deprived him a fair trial. The court denied the motion, reasoning, "I did advise and admonish the jury to disregard that, and I am going to assume that they will be able to follow that instruction."

Defendant contends the court erred in denying the mistrial because Deputy Crisostomos statement might have caused the jury to infer his guilt based on his gang membership. He asserts that "[g]uilt by association is a thoroughly discredited doctrine" in our legal system. (People v. Chambers (1964) 231 Cal.App.2d 23, 28.)

A court should grant a mistrial when prejudice cannot be cured by admonition or instruction. (People v. Wharton (1991) 53 Cal.3d 522, 565.) "`Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (Ibid., quoting People v. Haskett (1982) 30 Cal.3d 841, 854.)

We conclude the trial court did not abuse its discretion in denying the mistrial motion after Deputy Crisostomo referred to defendants gang affiliation. The court cured potential prejudice by immediately striking the deputys answer and instructing the jury to disregard it. (People v. Bolton (1932) 215 Cal. 12, 26.) "It is . . . presumed in the ordinary case where evidence is stricken out and the jury is instructed to disregard it, that the jury will follow the instruction, and that the error is thereby cured. But this rule is not of invariable application; and sometimes the seriousness or peculiar nature of the evidence, or the circumstances, are such that it cannot reasonably be said that its prejudicial effect was eradicated by the instruction." (Ibid.; see also People v. Seiterle (1963) 59 Cal.2d 703, 711.) Here, the trial court could reasonably have determined the jury would disregard the deputys solitary reference to defendants "gang" membership. Therefore, we conclude the court did not error in denying defendants motion for a mistrial.

DISPOSITION

The judgment is affirmed.

We concur: DAVIS, Acting P.J., and NICHOLSON, J.


Summaries of

People v. Lacey

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 17, 2003
No. C042525 (Cal. Ct. App. Nov. 17, 2003)
Case details for

People v. Lacey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VAL LACEY, Defendant and…

Court:Court of Appeals of California, Third Appellate District, Sacramento.

Date published: Nov 17, 2003

Citations

No. C042525 (Cal. Ct. App. Nov. 17, 2003)