Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F07901458. Edward Sarkisian, Jr., Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
OPINION
A jury convicted appellant Jorge Leon Lopez of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), criminal threat (Pen. Code, § 422; count 2) and false imprisonment (Pen. Code, § 236; count 3). The court imposed the four-year upper term on count 1, and concurrent three-year terms on each of counts 2 and 3.
On appeal, appellant contends the court erred in excluding evidence of the complaining witness’s conduct evincing moral turpitude under Evidence Code section 352 and impermissibly curtailed appellant’s right under the California and United States Constitutions to confront and cross-examine that witness. We will affirm.
All further statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
Appellant is married to Rosario Leon. He moved out of the family home in December 2005.
Appellant and Leon are the parents of four children, one of whom is F. On February 18, 2007 (February 18), F. was 15 years old; B., his girlfriend, was 14 years old; and B. was living in Leon’s home.
B. testified to the following. At approximately noon on February 18, she was home alone, in the living room, when she heard the sound of glass breaking in Leon’s bedroom. She opened the door to Leon’s room to investigate, and saw appellant standing near a dresser, holding a bra and a pair of panties that belonged to Leon, and smelling them.
B. further testified to the following. She asked appellant what he was doing in the house. Appellant stated he was looking for Leon. B. said Leon was at church. Appellant then stated he was looking for Leon because he wanted to kill her, and “since [Leon] is not here, I’m going to kill you.” B. turned to run away, but before she could escape, appellant grabbed her from behind by the neck; hit her in the left side of her face with his fist; grabbed a pair of scissors; opened them; and held the open scissors to her neck. B. struggled to get away, and, after two or three minutes, broke free and ran out of the house. As she ran, appellant threw a “little knife” at her, but it did not strike her. B. ran to a neighbor’s house.
City of Fresno Police Officer Jesse Ruelas testified that on February 18, he responded to Leon’s home, where he spoke with B. and took photographs of her. He further testified that those photographs, which were introduced into evidence, “depict some redness and swelling [and what] appear to be scratch marks and some bruising.”
Motion in Limine to Exclude Evidence
Appellant filed a motion in limine in which he stated he “seeks to admit evidence that the complaining witness, [B.], was booked into Fresno County Juvenile Hall for stealing clothing and accessories from Macy’s, Gottschalks, and J.C. Penny’s at the Fashion Fair Mall in Fresno, California, on March 21, 2006.”
At the hearing on the motion, the prosecutor objected to the proffered evidence on the grounds that it would be “more prejudicial than probative” and “would cause an undue consumption of time,” and was therefore inadmissible under section 352. In support of this claim, the prosecutor asserted that B. “had a prior arrest in 2006” for “a shoplifting-type offense”; “[s]he did some community service and then the case was dismissed”; and because there was no “conviction,” introduction of evidence of B.’s conduct would entail a “little mini-trial.”
Defense counsel stated she had under subpoena the police officer “who took the report for the Fresno Police Department” and the loss prevention officer at Macy’s West “who actually observed the conduct and apprehended [B.] and another young woman she was with.” Counsel also stated, “I don’t know if I intend to call [the police officer] at this point ….”
In denying the defense motion, the court stated: “No true finding [was] made as to the allegations that were before the Court relating to that witness …. [T]hose offenses were ultimately as the Court understands dismissed. So the fact that there was no true finding made or admission … weighs quite heavily in the Court’s mind with respect to the order the Court is going to make to disallow the admission of that evidence for impeachment purposes…. [A source the court identified as Simons California Evidence Manual] “reminds us that when there is no conviction and the misconduct must be proved by the testimony of witnesses, courts must be concerned with the consumption of time that could occur, except in those cases where the witness impeached has admitted the impeaching conduct. A mini-trial may well result that rivals the length of the main trial…. In other words, a trial within a trial that would result in an undue consumption of time ….”
DISCUSSION
The rules regarding the admissibility of evidence of instances of past conduct to discredit a witness are codified in a number of statutes, including section 787, which sets forth the general rule that “evidence of specific instances of … conduct relevant only as tending to prove a trait of [the witness’s] … character” is admissible for impeachment, and section 788, which set forth an exception to that rule by permitting a witness to be impeached with evidence “that he [or she] has been convicted of a felony ….”
However, in People v. Wheeler (1992) 4 Cal.4th 284 “the Supreme Court held that the right to Truth-in-Evidence provision of the California Constitution (Cal. Const., art. I, § 28, subd. (d)) abrogated the rule that defendants could be impeached by felony convictions only (Evid. Code, § 788). The court held that criminal trial courts may, in their discretion, admit conduct showing dishonesty or moral turpitude for impeachment.” (People v. Lee (1994) 28 Cal.App.4th 1724, 1738-1739.) As Wheeler explained, article I, section 28, subdivision (d) of the California Constitution “makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor.” (People v. Wheeler, supra, at p. 297, fn. 7.)
With the adoption of the so-called truth-in-evidence rule by the passage of Proposition 8 in 1982, the California Constitution was amended to read: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Section 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.” (Cal. Const., art. I, § 28, subd. (d).)
However, the Wheeler court also noted, “Section 28(d) [of the California Constitution] makes clear … that ‘nothing in this section shall affect an existing statutory rule of evidence relating to … hearing on Evidence Code [section] 352 …’” (Id. at p. 291, fn. omitted.) Thus, under Wheeler, evidence of conduct by a juvenile witness evincing moral turpitude is admissible, regardless of whether the conduct resulted in an adjudication, unless the minor was honorably discharged from the Department of Corrections, Juvenile Justice, “subject, of course, to the restrictions imposed under Evidence Code of section 352.” (People v. Lee, supra, 28 Cal.App.4th at p. 1740.)
Here, as indicated above, the court ruled that the proffered evidence of B.’s conduct, i.e., evidence that B. stole clothing and accessories from the three Fresno department stores on March 21, 2006, was inadmissible under section 352. This ruling, appellant contends, was error. We disagree.
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that it 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.”
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of this discretion “will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
There is no dispute the proffered evidence was relevant. (§ 210 [evidence is relevant if it has “any tendency in reason to prove . . . any disputed fact”].) Misconduct involving moral turpitude may suggest a willingness to lie, and is therefore relevant on the issue of a witness’s credibility (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296) and theft is a crime indicating both moral turpitude and dishonesty (id. at p. 297). In addition, B.’s testimony was highly material, in that she was the sole percipient prosecution witness as to the acts constituting the instant offenses, and her credibility was the central issue in the case. (See People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20 [probative value depends, in part, “the importance of the issue to the case (degree of materiality)”].)
However, whether B. committed one or more acts of theft was a collateral matter, i.e., a matter which, though relevant on the issue of B.’s credibility, “had nothing to do with the facts at issue in the trial.” (People v. Lavergne (1971) 4 Cal.3d 735, 742, accord, People v. Rodriguez, supra, 20 Cal.4th at p. 9 [“[a] collateral matter had been defined as ‘one that has no relevancy to prove or disprove any issue in the action’”].) And “[w]hile collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury.” (People v. Lavergne, supra, 4 Cal.3d at p. 742.)
Moreover, appellant’s offer of proof was vague on an important point. As the Wheeler court noted, certain considerations apply when a party seeks to impeach based on conduct other than a felony conviction: “In general, a misdemeanor-or any other conduct not amounting to a felony-is a less forceful indicator of immoral character or dishonesty than is a felony.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) Here, although, as appellant points out, B. might have engaged in conduct that amounted to a felony, appellant’s cursory description of the proffered evidence -- “[B.] was booked into Fresno County Juvenile Hall for stealing clothing and accessories from Macy’s, Gottschalks, and J.C. Penny’s at the Fashion Fair Mall in Fresno, California, on March 21, 2006” -- leaves open the possibility that he sought to introduce evidence of misdemeanor conduct, thus further limiting its probative value. (Cf. People v. Rodriguez, supra, 20 Cal.4th at p. 10 [exclusion of proffered impeachment testimony upheld, based in part on counsel’s “vague” representation at to when conduct offered to impeach occurred].)
Finally, we note that, as the court in Wheeler stated, “[section 352] empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) “[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted.)
Here, defense counsel suggested that she intended to call at least one, and possibly two witnesses, to establish B.’s acts of theft. The court was reasonably concerned that admission of the proffered evidence would lead to a trial within a trial, which would entail not only direct examination testimony, but, in addition, the almost certain prospect of cross-examination as well as the possibility that the prosecution would seek to introduce evidence of its own to controvert defense testimony, and would thus result in the undue consumption of time.
To summarize, we recognize that the proffered evidence was relevant on a key point: the credibility of the single most important prosecution witness. And we assume, for the sake of argument, that the presentation of this evidence would have entailed, at most, the testimony of two witnesses. But evidence that B. committed acts of shoplifting is collateral in character, i.e., it has “‘no relevancy to prove or disprove any issue in the action.’” (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) And because there is nothing in the record to indicate appellant’s misconduct was more serious than a misdemeanor, the relevance of that evidence, i.e., its “tendency in reason” (§ 210) to prove that B. lied about appellant’s conduct, is marginal. On this record, it was far from arbitrary, capricious or patently absurd for the court to conclude that the probative value of the proffered evidence was substantially outweighed by the probability that its admission would necessitate undue consumption of time. (See People v. Thompson, supra, 27 Cal.3d at p. 318, fn. 20 [probative value of evidence depends, in part, on “‘the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy)….’”].) Moreover, the factors summarized above support the conclusion that that admission of the proffered evidence would have “created a substantial danger … of confusing the issues, or of misleading the jury,” and therefore provide further support for the exclusion of proffered evidence. (People v. Geier (2007) 41 Cal.4th 555, 582 [“we review the ruling [excluding evidence], not the court’s reasoning and, if the ruling was correct on any ground, we affirm”].) Thus, the court did not abuse its discretion in excluding the evidence under section 352.
Appellant also argues that the trial court, by precluding trial counsel from presenting the proffered evidence, “either through cross-examination or the testimony of a percipient witness,” denied appellant his right under the California and United States Constitutions “to cross-examine witnesses and properly confront his accuser.” This contention too is without merit.
“Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 .) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. (See People v. Harris (1989) 47 Cal.3d 1047, 1090-1091) A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Belmontes (1988) 45 Cal.3d 744, 781.)” (People v. Quartermaine (1997) 16 Cal.4th 600, 623; see also Holmes v. South Carolina (2006) 547 U.S. 319, 326 [“[w]hile the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury”].) Thus, where evidence would impeach a witness on a collateral matter and is “only slightly probative of [the witness’s] veracity, application of Evidence Code section 352 to exclude the evidence [does] not infringe [a defendant’s] constitutional right to confront the witnesses against him.” (People v. Jennings (1991) 53 Cal.3d 334, 372.)
Because, as demonstrated above, the proffered evidence was of marginal probative value and was properly excluded under section 352, there was no constitutional violation.
DISPOSITION
The judgment is affirmed.