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People v. Lara

California Court of Appeals, Sixth District
Sep 30, 2008
No. H031406 (Cal. Ct. App. Sep. 30, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOE MANUEL LARA, Defendant and Appellant. H031406 California Court of Appeal, Sixth District September 30, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Santa Clara County Super. Ct. No. CC629785

Duffy, J.

INTRODUCTION

After trial, a jury convicted defendant Joe Manuel Lara of two counts of attempting by means of threats and violence to deter and prevent two executive officers from performing their legal duties and resisting the officers’ performance by force and violence. (Pen. Code, § 69, count 1 (Roy Gutierrez); count 2 (Shawn Wynn).) In the jury’s absence, defendant admitted having served separate prison terms for prior felony convictions of unauthorized use of tear gas and sale of phencyclidine (PCP). (Pen. Code, § 667.5, subd. (b).) After a court trial, the court found that defendant had served a separate prison term following a felony conviction of battery on a peace officer. The court sentenced defendant to prison for three years, consisting of the midterm of two years on count 1, enhanced by one year for a prison prior with two years concurrent on count 2. The court struck the other two prison prior enhancements pursuant to Penal Code section 1385.

On appeal, defendant challenges the admission of evidence of two of his prior convictions. They were admitted to test the testimony given by defendant’s sister about his character for violence. Defendant also asks us to review the trial court’s ruling under Pitchess v. Superior Court (1974) 11 Cal.3d 531. For the reasons stated below, we will affirm the judgment, finding no error.

THE TRIAL

Viewed in a light favorable to the judgment, the evidence at trial showed that, on the evening of May 12, 2006, defendant escalated from screaming obscenities inside a friend’s apartment, to threatening the two police officers who came to calm him down, to arming himself with a knife and emerging from the apartment with clenched fists and more threats to kill the officers, to being subdued by the officers after a three-minute struggle. After taking defendant into custody, the officers discovered that he had discarded the knife inside the apartment before emerging.

That evening, Santa Clara Police Officers Shawn Wynn and Roy Gutierrez responded to a report of a man screaming in an apartment complex. Wynn arrived at 9:13 p.m. Gutierrez arrived at 9:19 p.m. They met up and walked down a back alley of the apartment complex to a courtyard. They heard, as though through an open window, a man in an upstairs apartment repeatedly screaming “fuck you, bitch, you stupid motherfucker.”

As they walked into the courtyard, Nora Lara approached them. She explained the following. The screaming man was her brother, Joe. He had been drinking that day and had not taken his medication for being bipolar. He was depressed because Mother’s Day was coming up and their mother had recently died. She did not seem overly upset. She offered to come upstairs with the officers to try to quiet defendant down.

We use Nora’s first name to avoid confusing her with her brother, defendant, intending no disrespect.

The three walked up the stairs. Nora called out to defendant by his nickname, “Toto.” The officers knocked on the door and identified themselves as Santa Clara Police, calling defendant “Joe.” They said they wanted to talk to him and wanted him to quiet down. Defendant’s first response was to become quiet. At 9:29 p.m. the officers made a Code 4 broadcast, indicating that everything was under control and no further assistance was required.

The officers talked to Nora a little longer. The officers told defendant they were leaving and asked him to stay quiet so the neighbors did not call them again. Before leaving, the officers heard some movement inside the apartment. It was dark inside, so Officer Wynn used his flashlight and looked in through an opening in some vertical blinds. He saw defendant walk up to a couch and lie down. Wynn told him it was a good idea to sleep it off. Seconds later, defendant got up and walked out of view. The officers heard a drawer open and the clatter of silverware. When defendant came back into view, Wynn saw that he had a steak knife in his left hand. Defendant said he was going to kill the next “motherfucker” who entered the apartment. Officer Wynn warned Nora and Gutierrez and, at 9:33 p.m., Wynn put out a Code 3 fill call, asking for all available officers because the subject had a knife and was off his medications. He told the others that more police were on the way. As instructed by Wynn, Nora went down the stairs and Wynn followed her. He drew his gun, and halfway down, he turned to face the door. Gutierrez also drew his gun and retreated about 20 feet from the door on the second floor landing. Nora told the officers not to shoot her brother.

Defendant opened the door and emerged from the apartment. At five feet eleven inches tall, he was the same height as Officer Gutierrez, and at 220 pounds, was about 20 pounds heavier. Defendant was wearing a T-shirt and jeans. His hands were clenched in fists. The officers did not see a weapon, but were concerned that he might have concealed one in his clothing. Defendant came at Gutierrez, screaming, “I’m going to kill you, motherfucker.” Throughout the encounter, both officers repeatedly commanded defendant to stop, show his hands, and get down. Nora told defendant to stop.

As defendant approached Gutierrez, Wynn came up the stairs. Defendant turned his attention to Wynn and charged down the stairs, screaming that he was going to kill Wynn as well. Officer Wynn is six feet two inches tall and 185 pounds. Wynn retreated down the staircase. When defendant put his hands on the railings, Wynn could see that defendant was not holding anything. Wynn holstered his gun so that defendant would not go for it.

Gutierrez holstered his gun and followed defendant, arming himself with a collapsible baton. Defendant reversed directions on the stairs and charged up at Gutierrez. Gutierrez struck defendant’s left arm twice with the baton with no apparent effect. Defendant said, “Pussy, that’s all you got?” Gutierrez swung again. He may have struck defendant’s face because defendant ducked down.

This was the first time in 10 years on the force that Gutierrez had used his baton on a suspect. Officers are trained to use force necessary to overcome a suspect’s resistance to being taken into custody. Gutierrez was concerned that defendant might have a concealed knife or might try to go for his holstered gun.

Defendant turned his attention to Nora at the foot of the stairs. Gutierrez squeezed past defendant and came to the bottom of the stairs. He tried to pull defendant with him, but only succeeded in tearing defendant’s shirt. Defendant came after Gutierrez, still saying he was going to kill them. Gutierrez took out and used pepper spray. Defendant put his hands up to block the spray and kept coming. Someone pushed Gutierrez from behind. He looked around to see who it was. When he turned back, he saw defendant and Officer Wynn on the ground.

Defendant swung a fist at Officer Wynn. Wynn sidestepped defendant and swung at him with his metal flashlight, which is 13 inches long. Wynn probably struck defendant’s face, although he meant to hit his arm. Defendant dropped to the ground, face down. Wynn got on top of him and tried to hold defendant down while grabbing his left hand. Wynn was still concerned that defendant had a concealed knife and he wanted to prevent defendant from pushing himself back up.

Gutierrez struck defendant’s right leg and side about five times with the baton, telling defendant to give up his hands. Due to defendant’s resistance, it took both officers to secure defendant’s left hand and then his right to handcuff him. As the three of them struggled on the ground, Nora kept yelling that the officers did not have to hit him, that he did not have a knife. Officer Wynn told her to get back and be quiet. He got upset and told her, “[S]hut the fuck up.”

The officers used their weight to hold defendant down. Because defendant was kicking his legs, Gutierrez used a hobble to restrain his legs. By then other officers had arrived. Defendant was taken into custody at 9:36 p.m.

After being restrained, defendant kept yelling that he was going to kill them. Defendant was placed in a wrap to further restrain him and a spit mask. According to other officers, defendant kept yelling and cursing everyone on the scene, including the paramedics, until he was taken away. At 11:20 p.m., defendant’s blood alcohol level was .18 percent.

Santa Clara Police Officer Nick Nguyen searched the apartment and found two knives in plain view, one on the couch, the other on the floor of an open closet in the hallway. Officer Wynn told Nguyen the knife he saw defendant holding appeared to be the larger one in the closet. It turned out the apartment defendant was in belonged to a friend of defendant.

Photographs in evidence depicted the facial injuries defendant sustained in the struggle.

The following day at the police preprocessing center, defendant initiated a conversation with Santa Clara Police Officer Jacob Malae, who was waiting for a prisoner he had transported. Defendant established that Malae was with Santa Clara Police. Defendant said, “I was fucked up last night. I drank too much. I shouldn’t have been drinking. It’s been a while. And I . . . gave the officers a problem when . . . they arrived.” Defendant said he was an “asshole.” Defendant said he did not blame the officers. Defendant asked Malae to convey his apologies to the officers.

Defendant did not testify at trial. A doctor who examined defendant described his injuries. He had multiple facial fractures along one line, consistent with being struck with a baton. He had contusions on his back along a line, consistent with being struck with a baton. There was swelling on his left calf. The inside of his right knee was tender.

The defense evidence, presented primarily through his sister, Nora, was essentially that the police officers brutally beat defendant despite his lack of resistance to them. She testified that defendant settled down when the police first arrived and spoke to him inside the apartment. Prior to that time, he was cursing, but all his curses were directed at her, not at the officers. Defendant had been yelling and screaming since 6 or 7 p.m. She told him to leave their downstairs apartment because he had been drinking.

According to Nora, the officers were cordial up until the time that Officer Wynn said he heard something inside the apartment. Nora heard nothing. Wynn held his flashlight up to the blinds and said he saw defendant holding a knife. The blinds were shut. Both officers drew their guns. Wynn told Nora to go downstairs. She refused. Although she could not see inside the apartment, she said that defendant did not have a knife and they should not shoot him.

According to Nora, the officers told defendant to come outside the apartment. They holstered their weapons. Defendant opened the door. Officer Gutierrez hid on the side of the landing and Officer Wynn ran down the stairs past Nora. Defendant started coming down the stairs. From this point on, defendant said nothing to the officers and they said nothing to him. Gutierrez came after defendant down the stairs and grabbed him by the shoulders, ripping his shirt. Officer Wynn ran up the stairs and hit defendant with his baton. “[H]e busts my brother’s head open.” Defendant fell from the second or third stair face first into the dirt, motionless and unconscious. As he lay on the ground, both officers beat him with their fists, one working down from his shoulders and the other working up from his calves. Nora kept yelling at the officers to stop. Eventually they stopped. Wynn said, “I hope he’s not dead.” They handcuffed him. He went into convulsions. The officers told defendant to stop spitting. He said that he was unable to breathe due to the blood in his mouth. When they took defendant away on a gurney, Nora swore at him and he swore at her.

Nora’s daughter Serina testified that she saw two parts of this encounter. She saw the officers and Nora knocking on the door of the apartment, telling defendant to quiet down. She went back inside when they said they were going to leave. When she came back out, defendant was motionless on the ground, two officers were beating him with batons, and Nora was screaming at them to stop.

Gregorio Arteaga, a neighbor of defendant, testified that he saw more than two police officers “banging him on the floor,” beating him with their fists for about five minutes, and he heard defendant saying that he could not breathe. He did not observe any struggling or threats by defendant.

Defense counsel argued to the jury as follows. The prosecutor failed to prove beyond a reasonable doubt that defendant’s arrest was lawful, because the officers did not have probable cause to arrest him. Even if they had probable cause, the prosecution failed to prove that the arrest was lawful, because it involved excessive force. It was not reasonable for them to believe that defendant was armed with a knife. If defendant had threatened the officers and approached them aggressively, that might be an assault, but the officers were the only ones who so testified. Even if there was an assault, they reacted to a stressful situation with excessive force. That was obvious from the injuries defendant suffered and the lack of injuries to the officers.

THE EVIDENCE OF DEFENDANT’S PRIOR CONVICTIONS

On appeal defendant asserts that the trial court abused its discretion under Evidence Code sections 1101 and 352 in admitting evidence of his prior convictions. Defendant argues further that admitting this evidence violated his due process right to a fair trial.

Evidence Code section 1101 provides in part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

1. Introduction of the evidence

Defendant first sought to exclude this evidence in a motion in limine. The prosecutor requested that evidence of defendant’s character for violence be admitted if the defense introduced evidence of the character of Officers Gutierrez or Wynn for violence. The court ruled that the evidence would be excluded from the prosecutor’s case-in-chief, but the prosecutor could introduce it in rebuttal if defendant produced evidence under Evidence Code section 1103, otherwise the prior would be bifurcated. The court said it would find the evidence more probative than prejudicial if defendant raised the issue of violence.

Evidence Code section 1103 provides in part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

The issue arose at trial in a different context. On redirect examination of Nora, defense counsel ascertained that, due to defendant’s bipolar disorder, it was common for him to have bad mood swings, from “very happy” to “really sad.” On recross-examination, the prosecutor asked if the mood swings included being very happy and very angry. Nora answered, “He would be very happy, very sad. Sometimes he gets angry, but not to the point where he’s going to go beat somebody up or anything like that. After he gets done angry he’s back to being happy.”

After a bench conference, the prosecutor asked whether Nora had indicated that defendant “does not ever get angry enough to where he beats anyone.” The court ultimately sustained an objection that she did not say “never.” The prosecutor asked, “You’ve indicated that your brother doesn’t lose his temper to the point where he would beat anyone up; is that correct?” Nora answered, “Since he’s lived with me.”

The following exchange occurred.

“Q (By Mr. Chen) Would your opinion change if you knew that your brother has been convicted in the past for beating, beating someone?

“A What?

“Q You’ve said that your brother is not violent, that he doesn’t get angry to the point where he would beat anyone.

“A But you asked me that when you say when he’s on his meds.

“Q No, I didn’t. The question to you is you opined or you gave an opinion that your brother does not lose his temper to the point where he beats people; is that correct?

“A Yeah, but I thought you were talking about when he’s on his meds.”

Nora answered, “No,” when the prosecutor asked, “Are you aware that in 2001 your brother overpowered a private security guard, took his mace from him when that security guard tried to stop him from shoplifting and maced that officer, are you aware of that?” She was not aware that defendant was convicted under Penal Code section 243.9 for this conduct. When the prosecutor asked if that would change her opinion, she responded that she thought the prosecutor was talking about defendant’s mood swings on medication. When asked if it was her opinion “that if your brother is not on his meds that he’s very capable of that?” she answered, “Anybody is if anybody gets angry or provoked.” She denied saying that defendant was capable of violence when he was not on his medications. She did not know if he was. She also said she was not aware that defendant “has been convicted before of Penal Code 242 which is battery, hitting someone.”

By other questions, the prosecutor established that Nora did not know what mace, “O.C. mace,” and tear gas canisters were, but she had heard of pepper spray.

The following day, in the jury’s absence, the parties memorialized the bench conference. The court had ruled that in light of Nora’s volunteered statement about defendant’s character, his felony conviction was fair game. While there was no discussion at the bench about defendant’s misdemeanor, the prosecutor had also brought it up to the witness. Defendant had objected that the testimony did not open the door, but that even if it did, it was inappropriate to mention the misdemeanor conviction. Defendant’s credibility was not in issue. The evidence was more prejudicial than probative as it went to defendant’s credibility more than the witness’s.

The prosecutor responded that his question did not require the witness’s answer. She volunteered it, so the prosecutor should be able to test the basis of her knowledge.

The court explained to counsel that the priors were not admitted to challenge defendant’s credibility, but Nora’s. “I want to say that it was somewhat characteristic of her testimony that she would always give--or often give more than she was asked to give with respect to the question.” She was not asked whether defendant ever got so angry he would beat someone up. She volunteered that. That statement opened the door. It left the jury with an impression about the kind of person defendant was, so the prosecutor could test the basis of her knowledge. The previous day there had not been a Evidence Code section 352 discussion, but the court concluded that it was more probative than prejudicial.

The issue resurfaced on the following day of trial in the jury’s absence, when the prosecutor requested judicial notice of defendant’s Penal Code section 242 conviction. Defendant objected that it was improper evidence of his character, and not just impeachment of Nora. The court ruled: “I think the probative value outweighs any prejudice. I think the witness had put the defendant’s character for violence at issue. The People did not do that. The People’s question–I think I went into all of this last week. [¶] I don’t think the People’s question required her to answer in that fashion. She chose to volunteer it. That leaves the jurors with a certain view about the defendant’s character for violence, which is not accurate. And since it’s been put into issue by the defense and its witness, and especially when identified so closely with the defendant, then I think that it’s appropriate for the People to be able to rebut what the-–the witness has testified to.”

In the jury’s presence, the court took judicial notice from its files that defendant had been convicted in 2001 “for [Penal Code sections] 242 – 243.9[, subdivion] (a).” The jury was instructed: “The attorney for the People was allowed to ask the defendant’s character witness, Nora Lara, if she had heard that the defendant had engaged in certain conduct. These ‘have you heard’ questions and their answers are not evidence that the defendant engaged in such conduct. You may consider these questions and answers only to evaluate the meaning and importance of the witness’s–character witness’s testimony.”

In the clerk’s transcript, this instruction is noted by the trial judge as given on the court’s motion over defendant’s objection. However, defense counsel had proposed a limiting instruction that the court said it would allow. How counsel’s request differed from the given instruction does not appear in the record.

In opening argument to the jury, the prosecutor argued that Nora was biased in favor of defendant, her brother. She believed that defendant was wronged and she was going to cover up for him and change her story. As partial evidence of her bias, she said that defendant did not get angry enough to beat anyone up. Then, realizing what she had said, she began qualifying this statement, saying she did not know about defendant before he moved in with her. Then she conceded that he might become violent if off his medication. By qualifying her statement, she showed “her credibility. She will not do anything that she thinks will hurt her brother. So she immediately started backing up from what she had just said.”

2. Relevance of the evidence

Defendant argues that this evidence of his prior convictions was irrelevant and improper character evidence.

In People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez), this court confronted a similar issue. After reversing on other grounds, we considered whether the prosecutor had gone too far in cross-examining a character witness. After one of the defendant’s neighbors testified that defendant was “good people,” the prosecutor established by cross-examination that the witness was unaware of the defendant’s criminal history, including serving time for domestic violence, a stabbing, and assault on a police officer. (Id. at p. 1527.) We implicitly held on page 1528 that this cross-examination was allowed under the following authority. “When a witness testifies to a defendant’s good reputation, the prosecutor is entitled to ask in good faith if the witness has heard of misconduct by the defendant. (People v. Ramos (1997) 15 Cal.4th 1133, 1173; see People v. Wagner (1975) 13 Cal.3d 612, 619.) . . . [¶] . . . When a witness offers an opinion of a defendant’s good character, it is often based on personal knowledge as well as reputation. (People v. Hurd (1970) 5 Cal.App.3d 865, 880.) This opens the door for the prosecutor to offer rebuttal evidence of defendant’s character. (Evid. Code, § 1102, subd. (b).) Character evidence includes opinions, reputation, and specific instances of the person’s conduct. (Evid. Code, § 1100.) The prosecutor can test the witness’s opinion by asking about his or her knowledge of the defendant’s misconduct (People v. Clair (1992) 2 Cal.4th 629, 682-683), even if the witness professes ignorance. (People v. Hempstead (1983) 148 Cal.App.3d 949, 954.)”

Evidence Code section 1102 states: “In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:

While a person’s character or character trait may generally be proved by specific instances of that person’s conduct (Evid. Code, § 1100), by citing Evidence Code section 1102, Lopez recognized the general limitation that a defendant’s conduct in conformity with character may be established by evidence “in the form of an opinion or evidence of his reputation,” but not his specific acts of conduct, unless admissible under Evidence code section 1103.

Defendant asserts that “the prosecutor improperly sought to elicit irrelevant testimony merely to impeach it with [his] highly inflammatory prior record.” This sounds like a claim of prosecutorial misconduct, but there was no such objection at trial on this ground. We have no reason to question the trial court’s observation that the prosecutor’s question about defendant’s moods did not call for Nora’s volunteered statement that defendant did not get angry enough to beat people up. Contrary to defendant’s characterization, the prosecutor did not pry the door open. Instead, when cross-examined about the nature of defendant’s mood swings, his sister took the opportunity to suggest that defendant was not the type of person who beats people up when he is angry.

Defendant asserts that evidence of his mood swings was collateral and “was never part of the defense.” We might question why defense counsel specifically asked Nora about defendant’s mood swings. But defendant’s mental state was a significant concern of the police officers and it was an important issue for the jury. Among the first statements Nora made to the police was that defendant was bipolar and in a depressed state because he had not taken his medications. That defendant did not verbally or physically threaten the officers after he left the apartment was a key part of the defense argument. In addition to testifying that her brother did not curse the officers or resist them, even when they were pushing and beating him, Nora added the statement that it was not in his character to beat people up when he was angry. (See People v. Demetrulias (2006) 39 Cal.4th 1, 21 [“Evidence of acharacter trait has a ‘tendency in reason’ (Evid. Code, § 210) to prove the person’s conduct in conformity with that trait on a particular occasion”].) This opened the door for the prosecution to offer evidence to rebut the basis of Nora’s opinion of defendant’s character under the authority cited in Lopez. The trial court did not err in finding this evidence admissible.

The Attorney General argues that Penal Code section 69 is a specific intent crime. In Lopez, this court explained that this statute “actually describes two related offenses, attempting to deter and actually resisting an officer. These two offenses have different elements. . . . [A] willful attempt to deter or prevent involves a specific intent.” (Lopez, supra, 129 Cal.App.4th 1508, 1530.)

3. Prejudicial impact of the evidence

Defendant separately argues that the court abused its discretion under Evidence Code section 352 in admitting evidence that was more prejudicial than probative. He asserts that evidence of prior convictions is “inherent[ly] prejudicial” and “highly inflammatory.” It was certain to evoke an emotional response that would bias the jury against defendant, while only slightly tending to impeach Nora.

People v. Kelly (2007) 42 Cal.4th 763 stated at page 783: “In general, we have explained that ‘[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) The main policy that may require exclusion of the evidence is the familiar one stated in Evidence Code section 352: Evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. ([People v.] Ewoldt [(1994) 7 Cal.4th 380,] 404.) This determination lies within the discretion of the trial court. (People v. Carpenter, supra, at p. 380.)”

As recognized in Lopez above, the probative value of this kind of evidence is established. A witness’s opinion of the defendant’s good character can be tested and impeached by the witness’s awareness of specific instances of the defendant’s misconduct. (Cf. People v. Panah (2005) 35 Cal.4th 395, 492 [defense expert’s opinion impeached by lack of knowledge of the defendant’s criminal record].)

As to whether the trial court abused its discretion in finding the evidence more probative than prejudicial, we note that the jury was given an instruction limiting the impact of this evidence. It was relevant to the meaning and importance of Nora’s testimony, but it did not establish that defendant had engaged in that conduct. “[A]ny possibility the jury might have misunderstood the purpose of this evidence was obviated by the limiting instruction, which we presume the jury understood and followed.” (People v. Panah, supra, 35 Cal.4th at p. 492.)

Defendant asserts that the evidence was so prejudicial that the limiting instruction could not mitigate the harm. He relies on People v. Fritz (2007) 153 Cal.App.4th 949 (Fritz). In that case the defendant was charged with shoplifting on three occasions. Trial on prior convictions was bifurcated, but the trial court allowed the jury to jury to hear evidence that the defendant had previously admitted shoplifting from a different store. This was admitted in order to impeach a pretrial statement by the defendant that he had not shoplifted before. (Id. at pp. 953-955.) The appellate court pointed out that it was the prosecutor, not the defendant, who sought to introduce the defendant’s prior statement in order to impeach it. The court held that it was impermissible to introduce otherwise irrelevant evidence just for the purpose of contradicting it. (Id. at p. 956.) The court also rejected the argument that the defendant’s false statement was evidence of his consciousness of guilt. (Id. at p. 960.) The court said that this falsity was “not particularly probative,” while it carried “immense prejudicial weight.” (Id. at p. 961.) When evidence of a prior similar crime is excluded, it is not because it lacks probative value, but because it proves too much. (Id. at p. 962.)

The appellate court in Fritz concluded that the prejudicial impact of this evidence was not ameliorated by a limiting instruction that the jury consider it only for consciousness of guilt. (Fritz, supra, 153 Cal.App.4th at p. 962.) The court stated: “when evidence is this prejudicial, we can hardly expect the jury to be entirely successful in compartmentalizing its thinking. ‘It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect. It is time that we face the realism of jury trials and recognize that jurors are mere mortals.’ (People v. Gibson (1976) 56 Cal.App.3d 119, 130.) In other words, while we do presume the jury has endeavored to follow the court’s instructions (People v. Cunningham (2001) 25 Cal.4th 926), we cannot always assume that those instructions are sufficient to dispel the taint of prejudicial information. A limiting instruction warning jurors they should not think about the elephant in the room is not the same thing as having no elephant in the room.” (Id. at p. 962.)

Fritz is distinguishable in part because the limiting instruction given in that case itself “encouraged the jury to adopt a fallacious line of reasoning.” (Fritz, supra, 153 Cal.App.4th at p. 962 .) The instruction given in this case was consistent with what has been approved before. (Cf. People v. Aguilar (1973) 32 Cal.App.3d 478, 483; People v. Grimes (1959) 173 Cal.App.2d 248, 255.) We assume that the jury heeded the limiting instruction, thereby ameliorating the potential prejudicial impact of the evidence of defendant’s prior convictions. Moreover, the prosecutor’s argument also reminded the jury about the limited significance of this evidence.

4. Constitutional limitations on the evidence

Citing McKinney v. Rees (9th Cir.1993) 993 F.2d 1378 (McKinney), defendant argues that admitting the evidence of his prior convictions violated his federal due process rights. Quoting its earlier decision in Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920, the court held that “ ‘if there are no permissible inferences the jury may draw from the evidence,’ ” its admission can violate due process. (McKinney, at p. 1384.)

McKinney was convicted of murdering his mother by slitting her throat after the jury heard evidence that he owned two knifes that could have caused the wound, that he was proud of his knife collection, that he occasionally carried a knife, and that he used a knife to scratch “Death is His” on his closet door. (McKinney, supra, 993 F.2d at p. 1382.) The court concluded that much of this evidence was probative only of character and thus was irrelevant. (Id. at p. 1384.)

We fail to see McKinney’s parallel with this case. It is not usually a question of federal due process whether evidence of other crimes was erroneously admitted. (People v. Malone (1988) 47 Cal.3d 1, 22.) In any evidence, here the other acts evidence was relevant, so its admission did not violate due process. (Cf. People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Yeoman (2003) 31 Cal.4th 93, 122.)

THE OFFICER’S PERSONNEL RECORDS

In advance of trial defendant filed a motion under Pitchess v. Superior Court, supra, 11 Cal.3d 531 asking to discover any complaints about Santa Clara Police Officers Gutierrez and Wynn. On September 22, 2006, a judge reviewed in camera the files of these officers and then ordered production of contact information pertaining to one complaint against one officer. In compliance with People v. Mooc (2001) 26 Cal.4th 1216, the judge described for the record the documents he examined. (Id. at p. 1229.) Defendant, who has no access to this sealed transcript, asks us to review it. Having done so, we find no abuse of discretion or procedural error. (See id. at p. 1232; People v. Hughes (2002) 27 Cal.4th 287, 330.)

Pursuant to our order, the City of Santa Clara has provided us with the personnel files and internal affairs investigation reports that were submitted during the Pitchess hearing with the exception of one internal affairs file which we are advised has been destroyed after being retained for five years pursuant to Penal Code section 832.5.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Rushing, P.J. McAdams, J.

Section 352 states: “The 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.”

“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

“(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

“(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”

“(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.

“(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”

The trial court complied with Mooc by describing the documents reviewed for the record. Our assembly of these documents would have been facilitated if the trial court had been required by court rule or Supreme Court opinion to photocopy the reviewed documents and place them in a confidential file, another alternative suggested by Mooc.


Summaries of

People v. Lara

California Court of Appeals, Sixth District
Sep 30, 2008
No. H031406 (Cal. Ct. App. Sep. 30, 2008)
Case details for

People v. Lara

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOE MANUEL LARA, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Sep 30, 2008

Citations

No. H031406 (Cal. Ct. App. Sep. 30, 2008)