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People v. Lewis

California Court of Appeals, Third District, San Joaquin
Sep 16, 2008
No. C054592 (Cal. Ct. App. Sep. 16, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEWIS, Defendant and Appellant. C054592 California Court of Appeal, Third District, San Joaquin September 16, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SF095551A

ROBIE, J.

Defendant Jimmy Lewis was convicted of murder, shooting at an occupied motor vehicle, and other crimes connected to the killing of Marcus Inman. The evidence showed that on December 15, 2004, a teal Thunderbird pulled into the parking lot at the P & M Apartments and the passenger, later identified as defendant, got out and shot several times at Inman, who was riding a motorized scooter. Inman died from a bullet that struck him in the back and ended up in his heart.

On appeal, defendant argues that the trial court erred in excluding third party culpability evidence, admitting other crimes evidence, denying proper defense impeachment, and instructing the jury on what constitutes a motor vehicle. Finding no error, we will affirm the judgment.

DISCUSSION

I

Exclusion Of Third Party Culpability Evidence

Early in the prosecutor’s case-in-chief, Eric Goodman, the owner of a transmission/auto repair business across the street from the P & M Apartments, testified that on December 15, 2004, after hearing several “loud pops” that appeared to come from the apartments, he saw “kind of a teal green colored mid 90’s T-bird pulling out of the P & M Apartments.” A few days after the shooting he called the sheriff’s office because he saw “a car sitting on the side of the road in the shoulder that looked like the car that [he] had seen” the day of the shooting. Although initially Goodman could not recall whether he reported the license plate number of the car on the side of the road to the sheriff’s office, Kenneth Melgoza, an investigator with the San Joaquin County District Attorney’s Office testified on cross-examination that Goodman did report the license plate number of the car.

It was different than that of defendant’s Thunderbird.

The day after defendant was arrested in March 2005, a teal 1993 Thunderbird, which belonged to defendant, was found abandoned at the used car lot where he had purchased it in August 2004.

Toward the end of the prosecutor’s case-in-chief, defense counsel and the court put on the record a prior discussion in chambers regarding additional testimony defendant had wanted to elicit from Investigator Melgoza regarding the second teal Thunderbird. According to the offer of proof, Investigator Melgoza researched the car Goodman had seen on the side of the road and discovered that the registered owner of that car had been convicted of selling heroin, had used two false addresses in Stockton, had applied for two false driver’s licenses in Stockton, and had been deported but returned to the country illegally. Defense counsel also wanted to elicit evidence that Inman had methamphetamine in his body (apparently at the time of death). Defense counsel wanted to offer this additional testimony on a theory of third party culpability, but the court precluded him from doing so on the ground it was “too speculative.”

On appeal, defendant contends the trial court committed reversible error and violated his rights under the Sixth and Fourteenth Amendments by precluding him from eliciting this additional evidence regarding the owner of the other teal green Thunderbird. We disagree.

Evidence that someone other than the defendant may have committed the crime with which the defendant is charged is admissible if it is capable of raising a reasonable doubt of the defendant’s guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017.) This standard, however, does not “require the indiscriminate admission of any evidence offered to prove third-party culpability. The evidence must meet minimum standards of relevance: ‘evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’” (Ibid.) “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion.” (People v. Hall (1986) 41 Cal.3d 826, 834.)

Here, defendant contends the additional testimony he sought to elicit from Investigator Melgoza was capable of raising a reasonable doubt of defendant’s guilt because it demonstrated that “an oft convicted felon, turpitudinous [sic] drug dealer, and illegal alien” owned a car just like the one seen leaving the scene of the shooting. According to defendant, this -- along with the fact that defendant had methamphetamine in his body -- was sufficient to suggest that the owner of the other teal Thunderbird (or someone associated with him) was actually the person who shot Inman.

We agree with the trial court, however, that the link between the otherwise unidentified owner of this other teal green Thunderbird and Inman was “too speculative to be relevant.” (People v. Lewis (2001) 26 Cal.4th 334, 373.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Under this standard, “‘evidence which produces only speculative inferences is irrelevant evidence.’” (People v. Babbitt (1988) 45 Cal.3d 660, 682.)

That a similar car owned by a person with a conviction for selling heroin was seen by a witness to the shooting several days later does not, without more, have any tendency in reason to prove that the owner of this other car was Inman’s shooter and thereby disprove that defendant was the perpetrator. From the evidence defendant sought to elicit, any connection between the owner of the other Thunderbird and Inman’s shooting is nothing more than sheer speculation. Accordingly, the trial court did not err in excluding this evidence, and defendant’s constitutional rights were not violated by its exclusion.

II

Admission Of Other Crimes Evidence

Defendant’s wife, Neisa, testified in his defense. When the prosecutor asked her on cross-examination if she had ever seen defendant with any guns, she said, “No.” When the prosecutor followed up with, “Never in your life or just in the last year?” she responded, “No. I don’t do guns.” The following exchange then occurred:

“Q. Did you ever see him with shotguns before?

“A. No. Pellet gun, BB gun. Actually, I have a BB gun.

“Q. Never in your whole life did you ever see him with a shotgun?

“A. Not, no.

“Q. How about when you were 16?

“A. When I was 16, not that I can recall.

“Q. Did you make a police report when you were 16?”

At that point, defense counsel asked to approach the bench. Out of the presence of the jury, the prosecutor asserted that he wanted to ask Neisa about a report she made to police when she was 16 that defendant had kidnapped her, put a knife to her throat, put a shotgun to her head, forced her into the backseat of a car, and raped her. Defense counsel objected to the prosecutor’s “line of questioning” on the ground that he “never asked her anything about guns . . . at any point during direct.” The prosecutor argued that the “[w]hole issue goes to credibility.” The court concluded that the “line of questioning” was proper because it had a tendency not only to “place [Neisa’s] credibility into issue” but also to “rehabilitate [her] sister,” whom Neisa had criticized in her testimony on direct examination. Defense counsel “disagree[d] with [the court’s] ruling” and argued that, in any event, the prosecutor’s inquiry into the prior incident should be limited. The court agreed, precluding “any questions about the knife, because the only issue here is the gun.” The court then reconsidered “[b]ecause . . . the main issue here, the thrust of her testimony is to put her sister in a bad light. And that is a key part of her testimony. I think the D.A. is entitled to try to cross her on that by showing that the sister had good reason for complaining about their relationship, and, therefore, isn’t in such a bad light.” The court suggested that the prosecutor limit his question to whether Neisa had “complain[ed] once before the defendant had a shotgun at [her].” Defense counsel argued the question should be limited to whether she had “ma[d]e a report when [she was] 16 where the defendant had a gun in [her] presence.” The court strongly disagreed, saying the prosecutor was “entitled to ask her, did [she] ever report that the defendant pointed a shotgun at [her]. That is reasonable.” The court emphasized that the incident was “clearly primary to the issue about the sister’s [credibility]. She is trying to put the sister in a bad light. And that was the main thrust of her testimony. I do agree if she hadn’t said the stuff about her sister on direct, then the D.A. going, she saw him with a gun is out of the scope. He put all of the stuff in about her sister and no reason for complaining about the relationship. And now you find out she herself said the defendant raped her and held a shotgun to her. I will allow the shotgun. And I will limit it to just the shotgun unless she keeps insisting somehow it is all a frame job.”

Neisa Lewis had complained on direct examination that her sister, Paula Orr, had “been telling [her] for 20 years” that she did not “need [defendant] to be in [her] life.”

When Neisa was recalled to the witness stand, the prosecutor asked her if, when she was 16, she “ma[d]e a report to the Sheriff’s Department that this defendant had held a shotgun to [her] head.” She answered, “Yes.”

On appeal, defendant contends the trial court erred and violated his right to a fair trial under the due process clause of the Fourteenth Amendment by admitting this evidence. We disagree.

Defendant argues that “[t]he trial court erroneously admitted prior crime evidence solely to corroborate and bolster Orr’s credibility.” (Italics added.) Not so. The evidence that Neisa had previously reported to authorities that defendant held a shotgun to her head was highly relevant to impeachNeisa’s testimony that she had “[n]ever in [her] whole life . . . see[n] him with a shotgun.”

Defendant seeks to challenge this conclusion by arguing that “there was no material issue concerning [his] possession of firearms and ammunition which made Neisa’s having seen him in possession of weapons relevant.” Even assuming that is true, however, it makes no difference to the issue before us. At most, any such lack of relevance would have given defense counsel a legitimate basis for objecting to the prosecutor’s questions at the outset about whether she had ever seen defendant with a gun. Defense counsel did not do so, however, and once Neisa was allowed to testify without objection that she had never in her life seen defendant with a gun, the prosecutor was entitled to impeach the credibility of that testimony by asking her about an incident in which she had reported seeing defendant with a gun -- one that was pointed at her head.

Defendant argues the evidence of the shotgun incident should have been excluded as unduly prejudicial due to its “remoteness, lack of significant probative value, and inflammatory, prejudicial nature.” We are not persuaded. “An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection.” (People v. Cox (2003) 30 Cal.4th 916, 955.) There was no abuse of discretion here.

While “remoteness” is a material factor to consider in determining whether to admit evidence of a prior felony conviction for the purpose of impeaching the person to whom the conviction belongs (see People v. Burns (1987) 189 Cal.App.3d 734, 736-739), remoteness is not particularly material in this situation, where the prosecutor sought to impeach Neisa’s assertion that she had never seen defendant with a shotgun with evidence that Neisa had previously reported to authorities that defendant had held a shotgun to her head. That the incident occurred 22 years earlier did not materially reduce the impeachment value of the evidence.

As for the value of the evidence for impeachment purposes, it was significant. Neisa testified she had never in her life seen defendant with a gun, let alone a shotgun, when, in fact, she had once reported to authorities that defendant not only had a shotgun, but held it to her head -- an incident the vast majority of people will likely ever forget. The evidence of this report was extremely probative of whether Neisa was truthful as a witness.

Finally, although Neisa’s admission that she had reported defendant holding a shotgun to her head when she was 16 could have been damaging to defendant -- to the extent the jury believed Neisa was telling the truth when she made that report -- defendant has not persuaded us that the danger of undue prejudice substantially outweighed the probative value of the evidence for impeachment purposes. (See Evid. Code, § 352.) Accordingly, we find no error or violation of defendant’s constitutional rights in the admission of the evidence.

III

Limitation On Impeachment

Detective Javier Ramos, a homicide detective who investigated the shooting of Inman, testified for the prosecution. On cross-examination, defense counsel asked him about a conversation he had with Harold Plines, a witness who had identified defendant as the shooter. When defense counsel asked if Plines had said certain things “[d]uring that conversation,” Detective Ramos answered, “Yes. I think that is what Mr. Plines testified to, also, here on the stand.” Defense counsel responded, “I am not asking you about Mr. Plines and his testimony. I disagree with that. Is that what he said during your interview?” Detective Ramos again answered, “Yes. And it is also what I recall him saying.” Taking the detective’s retort as another reference to Plines’s trial testimony, defense counsel “ask[ed] to strike as nonresponsive.” The trial court denied that request. Defense counsel then sought to elicit whether Detective Ramos had taken notes of Plines’s trial testimony, and when he said he did, counsel asked if reading those notes would “help refresh [his] recollection.” The prosecutor objected on the ground of relevance, asserting, “It has been testified to.” The trial court agreed and sustained the objection. Defense counsel asserted, “If the witness brings it up and asserts it as a way to verify what he is testifying to, I have a right to cross-examine.” The court responded, “It has to be proper impeachment. The Court finds it is not, and, therefore, objection sustained.” Defense counsel argued that Plines’s testimony was different than what Detective Ramos was asserting it was and therefore “[t]his is direct impeachment. I have a right to ask. If Detective Ramos remembers it differently, I have a right to question him as to his memory.” The trial court repeated, “The objection is sustained. Move on.”

On appeal, defendant contends “[t]he trial judge’s erroneous denial of proper impeachment . . . prejudicially violated [his] Sixth Amendment right to cross-examination.” We disagree.

Defendant’s argument on this issue can be summarized as follows: Once Detective Ramos “wrongly testified” about what Plines had testified to at trial, defendant was entitled “to attack [the detective]’s credibility directly by both self-contradiction and contradiction and to impeach him” with what he recorded in his own notes of Plines’s trial testimony. The flaw in this argument is that defendant has no basis for knowing what was contained in Detective Ramos’s notes of Plines’s trial testimony. For all we know -- and for all defendant knows -- Detective Ramos’s notes were entirely consistent with his testimony about what Plines’s trial testimony had been.

More importantly, the question to which the court sustained the prosecutor’s objection was whether “reading [his] notes [would] help refresh [Detective Ramos’s] recollection” about what Plines testified to at trial. But Detective Ramos had not expressed any difficulty remembering Plines’s testimony, and while “[a] witness may refer to hearsay to refresh his recollection,” “before doing so the witness must testify he cannot remember the fact sought to be elicited.” (People v. Lee (1990) 219 Cal.App.3d 829, 840.) Because Detective Ramos had not expressed any uncertainty in his memory of what Plines testified to at trial, the trial court was correct in ruling that defense counsel’s question, which sought to determine whether reading his notes would “help refresh [his] recollection,” was not “proper impeachment.” Accordingly, defendant has failed to show any error in this regard.

IV

Instruction That A Motor Scooter Is A Motor Vehicle

Before trial, defendant filed a motion to set aside the charge of shooting at an occupied motor vehicle on the grounds that there was insufficient evidence at the preliminary hearing to establish that Inman’s scooter was motorized and that, in any event, a motorized scooter is not a motor vehicle. The court denied the motion.

Defendant renewed his arguments regarding the scooter during discussions over jury instructions. He argued that the scooter (which had been admitted into evidence) was “not a scooter with a seat,” but was “a skateboard with a motor on it.” The court agreed with the prosecutor that the scooter “qualifie[d] as a motor vehicle,” describing the scooter as “clearly what would otherwise be a child’s scooter that you would put one foot on and push with the other foot, except it has a motor on the back.”

This argument appears to have been related to the definition of a “motorized scooter” in Vehicle Code section 407.5, which defines a “motorized scooter” as “any two-wheeled device that has handlebars, has a floorboard that is designed to be stood upon when riding, and is powered by an electric motor,” but which “may also have a driver seat that does not interfere with the ability of the rider to stand and ride and may also be designed to be powered by human propulsion” and which may also be “powered by a source other than electrical power.” (Veh. Code, § 407.5, subds. (a), (b).) Whether Inman’s scooter qualified as a “motorized scooter” within the meaning of that Vehicle Code provision, however, is not dispositive of whether it qualified as a “motor vehicle” for purposes of the crime of shooting at an occupied motor vehicle. (Pen. Code, § 246.)

The trial court subsequently instructed the jury on the charge of shooting at an occupied motor vehicle with CALCRIM No. 965. In particular, the court instructed the jury that a “Motor vehicle includes a passenger vehicle, motorcycle, motor scooter, bus, school bus, commercial vehicle, truck tractor, and trailer. Those are all motor vehicles.” (Italics added.)

On appeal, defendant does not contend that the trial court’s definition of the term “motor vehicle” by way of example was legally inaccurate. Indeed, it is well-established in California that “any vehicle is a motor vehicle if it is capable of moving from place to place under its own power.” (People v. Jordan (1977) 75 Cal.App.3d Supp. 1, 11; see also Veh. Code, § 415, subd. (a) [defining “motor vehicle” as “a vehicle that is self-propelled”].) All of the vehicles listed by the court in its instruction meet that definition.

Instead, defendant contends “[t]he trial court’s instruction on the definition of a motor vehicle was a directed verdict that violated per se the Fifth, Sixth, and Fourteenth Amendments.” We disagree.

“‘[A]lthough a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]’ [Citations.] The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt.” (People v. Flood (1998) 18 Cal.4th 470, 491.)

Here, the trial court’s instruction that a motor scooter is a motor vehicle did not prevent the jury from finding that the prosecution had failed to prove a particular element of the crime of shooting at an occupied motor vehicle beyond a reasonable doubt. If the trial court had instructed the jury that Inman’s scooter was a motor vehicle, then the court would have, in essence, “directed a finding, or a ‘partial verdict,’ for the prosecution on that particular aspect of the crime,” in violation of “defendant's due process rights under the United States Constitution.” (People v. Flood, supra, 18 Cal.4th at p. 492 [instruction that certain officers were “peace officers” in prosecution for evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury constituted impermissible directed finding or partial verdict].) But that was not the instruction the trial court gave. Although it may have been extremely unlikely for the jurors to have found that Inman’s vehicle, which the trial court described as a child’s scooter with a motor on it, was not a motor scooter and therefore not a motor vehicle, the court’s instruction did not preclude them from so finding and therefore the instruction did not improperly direct a partial verdict against defendant.

DISPOSITION

The judgment is affirmed.

I concur NICHOLSON, J.

I concur in the judgment and in the opinion except for part II of the Discussion.

BLEASE, Acting P.J.


Summaries of

People v. Lewis

California Court of Appeals, Third District, San Joaquin
Sep 16, 2008
No. C054592 (Cal. Ct. App. Sep. 16, 2008)
Case details for

People v. Lewis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEWIS, Defendant and…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Sep 16, 2008

Citations

No. C054592 (Cal. Ct. App. Sep. 16, 2008)