Opinion
A096385.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. TODD DWAYNE PICKENS, Defendant and Appellant.
I.
INTRODUCTION
Appellant was charged with four robberies, and convicted of three by a jury. On appeal, he contends that his trial was fatally tainted by evidentiary errors and prosecutorial misconduct, and that his motion to sever the counts against him should have been granted. We disagree, and affirm the convictions.
II.
FACTS
Appellant was tried for three robbery incidents involving four victims: Cassandra Angel (count one); Bruce Babst and Emily Grimm (counts two and three, respectively), and Dawn Roe (count four). Appellant was convicted only of the Babst, Grimm, and Roe robberies. As to the Angel robbery, the jury was unable to reach a verdict; nonetheless, we discuss the evidence regarding it, because it is relevant to appellants contention that the various counts should have been tried separately.
A.
Angel Robbery (Count One)
On October 2, 1999, around 5:30 a.m., Cassandra Angel was alone at her workplace, the Hudson Bay Cafe, preparing to open for business. The cafe is located on College Avenue in Oakland, about three blocks from the Rockridge BART station. As she was setting up tables on the sidewalk outside the cafe, a man approached within three or four feet of her and said "Give me the money." The man was an African-American with a dark complexion and no facial hair, was a little over six feet tall, and looked about 23 to 25 years old. He was wearing a somewhat puffy blue down jacket with a hood that came almost down to his eyebrows, so Angel could not see whether he had any hair, and it was hard for her to tell how much he weighed, though she estimated about 175 to 180 pounds. The man kept his right hand in his coat pocket, and Angel was concerned that he might have a weapon, though he never said he had a gun or made any threats.
All further references to dates are to the year 1999 unless otherwise specified.
When Angel explained that the cafes money had not arrived yet, the man asked for her personal money. She went to retrieve it, and he followed her inside the cafe. Angel gave the man the few dollars she had in her bag, and he left. The entire incident took about three or four minutes, and it was still dark out at the time. As soon as the man left, Angel closed the cafe and called the police to tell them she had been robbed.
On October 7, Angel was asked to view a lineup at the Oakland Police Department. She was shown about five or six men wearing a blue jacket that looked like the one worn by the man who robbed her, and she identified appellant as the perpetrator of the October 2 robbery. Most of the people in the lineup had facial hair, but Angel recalled, and had told the officer who took her statement right after the robbery, that the robber did not have any facial hair.
Angel also identified appellant at the preliminary hearing.
At trial, Angel testified that she was "probably 99" percent sure that appellant was the man who robbed her, but not 100 percent. She also said that a blue jacket introduced in evidence by the prosecution looked like the one the robber had been wearing.
The blue jacket used at the lineup, and introduced as evidence at trial, was taken from the car appellant was driving when he was arrested shortly after the Roe robbery.
B.
Babst and Grimm Robberies (Counts Two and Three)
At dusk on October 2, the same day Angel was robbed, and also in the Rockridge district of Oakland, Emily Grimm and her boyfriend Bruce Babst returned to Grimms home from grocery shopping, and parked Grimms car on Ada Street near Broadway, in an area lit by a streetlight. Babst bent over into the interior of the car to retrieve the groceries from the floor, while Grimm stood in the street near the back corner of the drivers side of the car. Grimm saw a fairly thin, dark-complexioned, clean-shaven Black man, over six feet tall, with a long face and high cheekbones, crossing Ada Street towards her, wearing a bulky dark blue jacket with the hood pulled up over his head almost down to his eyebrows, so that his hair and forehead were not visible. The mans hands were out of sight under the jacket, making it bulge.
Babst also described the man as being over six feet tall, clean-shaven, having a long face and high cheekbones, weighing over 155 pounds but not heavy, wearing a blue jacket with the hood pulled up, and having his hands in his jacket pockets. Babst testified, however, that the jackets hood came down only to the middle of the mans forehead.
The man walked directly towards Grimm and then stopped a couple of feet in front of her, leading her to think that he was going to ask her for directions or change, so she spoke to him. The man responded, "You can make it easy or you can make it hard. Give me your money, or Ill shoot you in the face." At that point, Grimm felt she was being threatened, and became concerned that the bulge in the mans jacket might be a weapon. Grimm handed the man her wallet, which contained only a few dollars in cash, but also had her credit cards, bank cards, and drivers license.
Babst, who had not been visible when the man approached, then emerged from the car and tried to determine what was happening. The man said "Give me your money" or "Give me the money"; Grimm told Babst to give the man his wallet; and Babst then understood that he and Grimm were being robbed. Before handing his wallet to the man, Babst asked if he could remove his drivers license. The man agreed, so Babst removed his drivers license and bank card from his wallet before handing it over. Grimm then asked if she could have her drivers license back as well, and the man handed it to her. The man immediately walked back in the direction from which he had come, and Grimm and Babst went to her home and called the police. The police took a fingerprint from Grimms drivers license, but it did not match appellants, and Grimm explained at trial that other people frequently handled her drivers license.
A few days later, Grimm and Babst went to the police department to view a lineup. Appellant had a "peach fuzz" mustache at the time of the lineup, and Grimm had described the robber as clean-shaven. Nonetheless, Grimm identified appellant at the lineup as the man who had robbed her, as she also did at the preliminary hearing and at trial. Grimm testified at trial that during the lineup, "it was just really obvious that that was him"; that she was "very positive that he was the person who robbed me"; that she had had a "visceral reaction" when he appeared and had "very strongly recognized" him; and that she had recognized his voice and the way he walked. Grimm also testified that the jacket used in the lineup, and introduced in evidence at trial, matched the jacket worn by the robber, which she remembered clearly because she had liked the material it was made from. On cross-examination, Grimm reiterated that she had "as much certainty as I can say about anything in my life" that appellant was the robber, though she declined to quantify her degree of certainty as being 100 percent, explaining "thats not a phrase that I would say."
Grimm had given inconsistent estimates of the robbers age, but she explained at trial that this was due to her general tendency to be a bad judge of peoples ages.
Babst did not identify anyone as the robber at the lineup, but identified appellant both at the preliminary hearing and at trial. He testified at trial that he had recognized appellant as the robber at the lineup, and was certain of the identification once he heard appellants voice; he explained that had not marked his lineup card because he was trying to avoid being subpoenaed as a witness later on, and admitted that he had "shirked my responsibility by not indicating anyone" from the lineup. When asked on cross-examination whether his identification of appellant was 100 percent positive, Babst asked rhetorically "Is anything 100 percent[?]" but then added, "Yeah, I guess I can." Like Grimm, Babst identified the jacket introduced in evidence at trial as looking like the one worn by the robber.
At the preliminary hearing, Babst gave a somewhat different reason for not having marked his card at the lineup, i.e., that he did not "like to point the finger at people" and that "[i]t made [him] uncomfortable to identify someone." He was unequivocal, however, that appellant had been the only person at the lineup who resembled the robber. We do not perceive any irreconcilable inconsistency between Babsts varying explanations of his decision not to mark the lineup card, nor do we view his failure to disclose his recognition of appellant at the time of the lineup as fatally undermining the credibility or accuracy of his subsequent identification testimony.
C.
Roe Robbery (Count Four)
About 7:00 a.m. on October 7, five days after the Angel and Grimm/Babst robberies, Dawn Roe was walking along the left side of McMillan Street toward Keith, heading for the bus stop at the Rockridge BART station, when a car passed her, going in the same direction she was walking. The car drew Roes attention, because vehicle traffic was unusual at that time of the morning, and the car was moving abnormally slowly.
Shortly after the car turned right onto Keith Street, Roe noticed a man whom she did not recognize walking toward her on the opposite side of McMillan. The man was a thin African-American, over six feet tall, with a dark complexion, an oval face, and a shaved head, wearing a dark blue hooded jacket. Roe did not remember him as having any facial hair.
Roe briefly made eye contact with the man, and he cut across the street towards her, pulling up the hood on his jacket. As Roe passed the man, she heard him say something to her that she did not understand. Eventually, she stopped, realizing that he was saying, "I dont want to hurt you. Give me your money." When Roe refused, the man gestured toward a nearby carport and said, "Get over there." The man was holding his hand in his jacket pocket in a way that made Roe concerned that he had a gun, so she dropped the bags she was carrying and said, "No, Ill give you whatever you want." With the robber standing over Roe and telling her to hurry, she crouched down and retrieved just over $280 from one of her bags, consisting of one $100 bill, several $20 bills, and a few smaller bills. The robber took the money and walked away in the direction from which he had come.
When Roe called the police later, she told them the robber had a gun. She explained at trial that she had not actually seen a gun, but had assumed the man had one based on the the way he gestured with his hand in his pocket.
Roe, who was a schoolteacher, was carrying an unusual amount of cash that day because she was planning to buy supplies for her classroom after work. At the preliminary hearing, Roe testified that the money she had been carrying had all been $20 bills, but she explained at trial that since the preliminary hearing, she had reviewed her contemporaneous notes indicating that the cash had included a $100 bill, and this refreshed her recollection.
As Roe watched the robber walk away, she saw another person coming past the robber towards her, walking a dog. The dog walker was a man named Mark Sherstinsky. Sherstinsky testified at trial that just before he saw Roe that day, he had passed a tall Black man with a dark complexion and a shaved head, wearing a dark puffy jacket, walking in the opposite direction.
Sherstinsky only saw the man for a few seconds, and was unable to identify him when he looked at photographs of a subsequent lineup. At trial, he testified that appellant "resemble[d]" the man. Sherstinskys trial testimony regarding the mans build was inconsistent with the statement he had given the police at the time.
Roe came running up to Sherstinsky, told him she had been robbed, asked him for help, and then ran around the corner of Keith and McMillan streets in pursuit of the robber, with Sherstinsky following behind. As she turned the corner, Roe saw the robber get into the drivers side of a car parked on Keith Street, with a license plate number beginning with either 1PT or IPT, and containing the number 100. It was the same car that had driven past Roe just prior to the robbery. Sherstinsky also saw the car pull away from the curb and speed off. He described it as a big brown "late 70s" American car, long and boxy in body style. After the car drove away, Sherstinsky accompanied Roe to a nearby grocery store, where she called the police and gave them the license plate number and a description of the robber and the car.
The cars description and the partial license plate number went out over the police radio, and shortly thereafter, around 8:00 a.m., an Oakland police officer spotted a brown Buick not far from the site of the robbery, and followed it for several blocks until he could read the license plate number. About when the officer got close enough to read the license plate number, which was 1PTS100, the car pulled over to the curb and stopped. The police subsequently arrested the driver (appellant) and passenger (Henry Lindsey).
The name is spelled phonetically as "Linzie" in some portions of the transcript, but in those instances, the prosecutors questions identify "Linzie" as the person appellant was arrested with on October 7, 1999, so we understand those references to be to the same person, i.e., Henry Lindsey.
The police officers who were involved in appellants arrest and the ensuing investigation found a dark blue, hooded jacket on the back seat of the car. At trial, Roe and Sherstinsky, like the other robbery victims, identified the blue jacket found in the car as the one worn by the robber. On the drivers seat of the car, the police found $208 in cash, consisting of one $100 bill, five $20 bills, one $5 bill, and three $1 bills, as well as a knife located next to the drivers seat.
When appellants car was stopped, Roe was still at the grocery store, talking to the police who had responded to her call. They asked Roe to come and look at someone who might or might not be the person who robbed her, and drove her to the location where appellants car had been pulled over. Once there, Roe identified appellant as the man who had robbed her, although he was dressed in different clothes. After Roe identified appellant, the police had him put on the blue jacket they had found in the car, and also showed Roe a second African-American man with a shaved head, who also put on the blue jacket. Roe was sure that appellant, not the other man, was the robber. She also recognized the car as the one in which the robber had left the scene, although she had paid more attention to getting its license plate number than to its physical appearance. Sherstinsky also testified that a photograph of this car looked like the car he saw pulling away after the robbery. Roe identified appellant as the robber with "100 percent certainty" at trial, and recognized his voice.
Later the same day, Oakland Police Sergeant Brian Medeiros, together with another officer, Sergeant Beal, interviewed appellant at the Oakland police station. Medeiross trial testimony related the interview as follows. Appellant told Medeiros that he lived with his mother, Audrey Cobb, on 46th Street in Oakland, and that he was employed as a caterer. Medeiros obtained a waiver of appellants Miranda rights, and then asked him if he had been involved in the Roe robbery. Appellant repeatedly denied it, and explained that he had stayed with Denise Hines in Hayward the previous night and had left for Oakland between 6:30 and 7:00 a.m. Appellant acknowledged to Medeiros that he had some debts, but explained that he had inherited some $40,000 from his father, though his mother had control of it and he could not access it without her approval. He said that the blue jacket found in the back of the car had belonged to his deceased brother.
As will appear, post, appellants version of the conversation was markedly different from that of Medeiros; he denied answering any of the officers questions or giving them any information.
After interviewing appellant for about 40 minutes, Medeiros checked appellants wallet for credit cards or identification belonging to the robbery victims, and found what he suspected (correctly, as later testing revealed) was three rocks of cocaine. Medeiros testified at trial that appellant responded by acknowledging that "I have a problem." Medeiros then left the interview room to mark the cocaine for later use as evidence.
At a pretrial motion hearing on December 18, 2000, Medeiros testified that upon the discovery of the cocaine, it was he or his colleague Sergeant Beal, rather than appellant, who "stated [that] you [appellant] have a problem."
Appellant was also criminally charged for cocaine possession, but those charges were severed and are not at issue on this appeal.
When Medeiros returned a little less than an hour later, appellant admitted that he had walked up to a White female earlier that day and asked her for her money, because he needed money for gas. Appellant also admitted having drug debts, using cocaine, and being responsible for three other robberies, one of which was committed in Oakland near the Safeway store, and one outside Oakland. Appellant then terminated the interview, and the investigating officers proceeded to arrange the lineup that Angel, Grimm, and Babst were asked to attend later that day.
D.
Defense Case
Before testifying on his own behalf, appellant presented the testimony of his fiancée, Denise Hines; his mother, Audrey Cobb; and his former girlfriend, Latricia King, to corroborate his contention that he had no motive for the robberies because he had income from a catering business as well as access to a substantial sum of money his father had left him. King also provided concededly weak corroboration of appellants alibi for the Roe robbery. The testimony of Hines and King is discussed in more detail below, in connection with appellants contention that the trial judge erred in allowing the prosecutor to cross-examine them improperly.
Appellant testified that he had not committed any of the robberies. He explained that he had access to a substantial amount of money that his mother kept for him, some of which he had withdrawn from the bank around the time of the robberies, and therefore that he had no need to commit robbery in order to obtain funds. He discussed his work as a cook, and his efforts to start up a catering business. He asserted that he had been at Kings home during the time the Roe robbery occurred; that the cash found on him at the time of his arrest came from his own bank account, and that he had obtained the $100 bill from the girlfriend of his co-arrestee, Henry Lindsey, who asked him to break it for her.
In response to the prosecutors questions on cross-examination, appellant stated that he had stopped using crack cocaine some months before the robberies, and disclaimed ownership, and even knowledge, of the crack cocaine found in his wallet when he was arrested. He denied telling Sergeant Medeiros that he had a problem with crack cocaine. He contended that he had never seen the blue jacket until the morning of October 7, when it was placed on him after his arrest, and denied telling the investigating officers that it had belonged to his brother. He contended that after Sergeant Medeiros read him his Miranda rights, he declined to answer any of his or Sergeant Beals questions. He denied saying any of the things attributed to him by Sergeants Medeiros and Beal, and said that he did not know where they obtained the information reflected in their notes.
III.
DISCUSSION
A.
Improper Cross-Examination of Defense Witnesses
Appellants principal contention on appeal is that the trial court erred in allowing improper cross-examination of defense witnesses Hines and King. In order to assess these contentions, we will summarize the testimony of each of these witnesses in some detail.
1. Denise Hines: Testimony
During her brief direct examination, Hines testified that she had known appellant for 17 years, that he was her sons father and her fiancé, and that during the period when the robberies occurred, appellant occasionally stayed with her at her home. She also testified that appellant was involved with a catering business, that she had helped him with two catering jobs in 1998 or 1999, and that at around the time of the robberies, she was planning on doing so again. During the time Hines knew appellant, she had never known him not to have a mustache, and had never known him to own or wear a puffy blue hooded jacket like the one worn by the robber.
The cross-examination of Hines lasted considerably longer than her direct testimony. The prosecutor asked about Hiness romantic relationship and financial dealings with appellant; her contacts with appellant and with his defense counsels office during the time between his arrest and the trial; the details of the catering jobs Hines had helped appellant with; appellants relationship with his mother; where he was living in the fall of 1999; and what car he was driving in October 1999. She also verified that Hines could not provide appellant with an alibi for any of the robberies. Appellants trial counsel did not object to any of these portions of the cross-examination as being outside the scope of direct or otherwise substantively improper. Nor did he object when the prosecutor asked whether Hines had had any "ups and downs in your relationship" with appellant during the 17 years she had known him.
However, when the prosecutor asked whether "any of those ups and down [sic] [were] caused by [appellants] drug problem," appellants counsel objected on the basis of relevance. At an ensuing conference in chambers, counsel further objected that any questioning about appellants prior substance abuse conviction, which occurred in about 1987, would violate the trial courts in limine ruling that the conviction was too remote in time to be relevant, and would also be a violation of appellants due process rights under the Fourteenth Amendment. The prosecutor responded that she had not asked, and did not intend to ask, about appellants criminal arrest history, but only about Hiness knowledge of his drug abuse problem.
The substance of the unreported conference was put on the record at the conclusion of that days trial session, after the jury had been dismissed for the day.
The trial court overruled the objection. The judge noted that Hines had testified on direct examination that she had known appellant for 17 years and that he was her fiancé, and that there was evidence that appellant had a controlled substance in his possession when he was arrested after the Roe robbery. On that basis, he reasoned, cross-examination regarding Hiness knowledge of appellants drug problem was relevant and was within the scope of the direct examination.
When the cross-examination resumed, Hines conceded that appellant had "had a drug problem" off and on for seven years, and identified the substances involved as alcohol, crack, and "weed." Hines added, however, that she had not been aware of appellant having a drug problem during the period around September 1999, when appellant was visiting her home as many as five days a week, helping out at her sons school, and often spending the night. She acknowledged that if appellant had come to see her and their son while under the influence of drugs, this would have upset her.
Hines also testified that, as of early October 1999, she and appellant were arguing a lot and not getting along, and that appellant had to find another place to stay as a result. Appellants trial counsel did not object to this line of questioning until the prosecutor asked Hines what kinds of problems she and appellant had been having, at which point he objected on the ground of relevance. After this objection was overruled, Hines explained that their disagreements did not relate to "anything in particular." The prosecutor then followed up by asking whether Hiness disagreements with appellant related to his having started smoking crack cocaine in late September 1999. Appellants counsel did not object, and Hines responded "No." The prosecutor also asked Hines, without objection from appellants trial counsel, whether appellant tended to spend a lot of money when he had drug problems, to which Hines answered "Yes." At no point during the cross-examination did the prosecutor mention appellants history of drug arrests, as opposed to drug use.
On redirect, appellants trial counsel asked Hines, "[W]hen is the last time you were aware [appellant] actually used crack cocaine?" She responded, "That I know of? Like, 91." The rest of the redirect consisted of a few follow-up questions about the catering business, and a brief exploration of Hiness memory regarding the dates appellant stayed with her in September and October of 1999.
Appellants contentions on appeal relate primarily to what happened next, during the prosecutors recross. After reminding Hines that she had testified (on redirect) that she was not aware of appellants using drugs since 1991, the prosecutor proceeded to ask, over defense counsels objection on relevance and lack of foundation, whether she knew that appellant had been stopped with drugs in his possession in 1994. The objections were overruled, and Hines said that she did not.
The prosecutor then asked whether Hines knew or thought that appellant had a drug problem in 1995, and she responded that she thought he had a drinking problem. The prosecutor then marked for identification a statement Hines had given to the Hayward police in June 1995, at which point the trial judge called for another conference in chambers. Appellants trial counsel objected on the grounds of relevance, lack of foundation, and prosecutorial misconduct to the prosecutor asking Hines about appellants prior drug-related arrests. The objections were again based in part on the contention that questions about the arrests, as opposed to appellants drug use, were an attempt to circumvent the trial courts in limine rulings precluding reference to appellants past arrests not resulting in felony convictions.
Again, the substance of this unreported conference, as well as an unreported sidebar conference shortly thereafter, was put on the record at the next break. It is not entirely clear from the record which portions of the colloquy occurred during which of the two conferences, but the distinction is not material to the issues before us on appeal.
The prosecutor countered by pointing out that it was appellants counsel who had asked Hines, on redirect, about the last time she knew of appellants drug use. She contended that this question had "opened the door . . . for me to inquire about her knowledge of [appellants] drug use since [that date]." In a later sidebar conference that occurred after the prosecutor used the term "arrest" in a follow-up question, the prosecutor explained that although it was intially inadvertent, she still believed it was "valid under the circumstances because of the nature of the relationship the [w]itness had with [appellant]," in that when two people are "supposedly living together," one of them will normally know if the other is arrested.
In response, the trial judge noted that his in limine rulings excluding evidence of appellants substance abuse arrests had always been subject to change based on the evidence at trial. He concurred with the prosecutor that, "If the door hadnt been opened before, it certainly was" by appellants counsels question on redirect about the last time appellant used crack cocaine, and that "given [Hiness] intimate familiarity with [appellant] over this substantial time, which was brought out by the defense, and the fact she made a categorical statement that [appellant] last used crack cocaine in 1991, it was appropriate for the [p]rosecutor to ask questions . . . acknowledging significant events involving crack cocaine by [appellant] in the intervening years." He reasoned that questions about arrests related to narcotics were appropriate "to impeach [Hines] for things that she had specifically said on her direct examination and redirect examination," and noted that the prosecutor had correctly refrained from asking about other arrests that were not narcotics-related. Accordingly, he overruled the objections and declined to censure the prosecutor for misconduct.
When Hines resumed her testimony, the prosecutor showed her the statement she had given to the Hayward police in June 1995, in which she said that appellant " `has a drug, crack, and alcohol problem. " Hines explained that in 1995, she believed that appellant had "an alcohol problem and a marijuana problem," but that "[t]he crack part I dont know, but I do know he had in 91. So in my eyes, once you had a problem, then its always a problem, like an alcoholic."
Pressing on, the prosecutor asked whether Hines knew of any other times appellant had used crack cocaine after Hiness statement in 1995. Appellants trial counsel did not object, and Hines responded "Not to my knowledge." Then the prosecutor asked whether Hines was aware that appellant had been arrested in 1998 for possessing crack cocaine and marijuana. At that point, following the sidebar conference discussed above, appellants trial counsel made a continuing objection, which the trial court overruled.
The prosecutor then elicited testimony from Hines that she did not know appellant was stopped and arrested for possessing crack cocaine in 1994, and that she did not remember his having been in custody during that time, though Hines noted that the arrest could have occurred during one of the periods at this time when they were not actively dating. Hines indicated that since 1991, she had no knowledge of appellants using drugs other than alcohol and marijuana, an issue they were "working on." She again disclaimed any knowledge of appellants having been stopped and arrested twice during 1998 for possession of cocaine. Nor was she aware that in October 1999, when appellant was arrested for the robberies involved in this case, three rocks of crack cocaine were in his wallet. Finally, she denied being acquainted with appellants co-arrestee, Henry Lindsey.
2. Denise Hines: Appellants Contentions
Appellant argues that the trial courts rulings erred in allowing the prosecutor to question Hines about appellants drug use history and prior drug arrests, on two grounds. First, appellant argues that the prosecutor committed misconduct by going beyond the scope of the direct examination, citing People v. Ramirez (1990) 50 Cal.3d 1158, 1191-1193, disapproved on another ground in People v. Saille (1991) 54 Cal.3d 1103, 1118 (Ramirez). Our standard of review on this issue is abuse of discretion. (People v. Farnam (2002) 28 Cal.4th 107, 187.) Second, appellant contends that the evidence of his prior narcotics arrests was inadmissible character evidence and was irrelevant to prove appellants commission of the crimes charged, citing Evidence Code section 1101 and other authorities discussed below. With regard to both lines of argument, appellant fails to distinguish adequately between the cross-examination and the recross-examination. Our analysis treats each phase of the testimony separately.
We accept (as did the trial court) appellants characterization of Hiness direct testimony as not constituting evidence of general "good character." We therefore acknowledge that nothing in the direct entitled the prosecution to introduce general "bad character" evidence in response, whether through its cross-examination of Hines or otherwise. (Cf.Ramirez, supra, 50 Cal.3d at pp. 1191-1193.) Nonetheless, we cannot find an abuse of discretion in the trial judges ruling allowing the prosecutors cross-examination to test Hiness knowledge of appellants drug use during the course of her relationship with him, for two reasons.
First, Hiness testimony that she had never known appellant to do certain things (specifically, own a certain type of jacket or shave off his mustache) entitled the prosecution to seek to impeach Hines by testing the depth of her knowledge of his behavior and habits during the 17 years she knew him. (Cf.Ramirez, supra, 50 Cal.3d at p. 1193 [after defendants mother testified regarding his difficult childhood, prosecutor was properly permitted to cross-examine regarding positive aspects of childhood in order to "place the mothers direct examination testimony in proper perspective"].) Second, the evident purpose of much of Hiness direct testimony was to bolster a key aspect of appellants defense, to wit, his contention that because he had a growing catering business and an inheritance, he had no need to obtain money illegally, and thus no motive for the robberies.
The prosecutions cross-examination regarding Hiness knowledge of appellants drug use was aimed at impeaching Hines on both of these points, by "rebut[ting the] impressions left by [her] own testimony on direct," and thus was properly allowed. (People v. Farnam , supra, 28 Cal.4th at p. 188.) Moreover, in light of the fact that appellant had cocaine in his possession when he was arrested had already come into evidence, we find no abuse of discretion in the trial courts determination that the probative value of this evidence for impeachment outweighed its prejudicial effect. (See People v. Earp (1999) 20 Cal.4th 826, 859-860 [prosecutor did not commit misconduct by cross-examining defendant about harmful information "fairly derived from evidence already presented at trial"]; People v. Cooper (1991) 53 Cal.3d 771, 816 [abuse of discretion standard for review of trial courts determinations of relevance and weighing of probative value versus prejudice under Evidence Code section 352].)
With respect to the recross-examination, our analysis must take into account the effect of appellants trial counsels having prompted Hines, on redirect, to testify that the last time she knew appellant to have used crack cocaine was in 1991. We concur with the trial judges ruling that once appellant introduced this testimony, the state of the evidence changed in a way that materially affected the basis for the in limine rulings excluding evidence of appellants drug arrests.
Appellant contends that the trial courts rulings rested on the theory that Hiness testimony had "opened the door" or "opened the gates" for the admission of otherwise inadmissible evidence, and that this was error. To support this claim, he cites People v. Gambos (1970) 5 Cal.App.3d 187 (Gambos ), People v. McDaniel (1943) 59 Cal.App.2d 672, 677 (McDaniel), and a string of other cases for the proposition that "The so-called `open the door or `open the gates argument is `a popular fallacy. [Citations.]" (Gambos , 5 Cal.App.3d at p. 192.)
Respondent unfortunately fails to address this contention in its brief on appeal.
As recent scholarly commentary has noted, however, the term "open the door" is regrettably vague, because it has been used by courts inconsistently to refer to at least two different theories for the admission of evidence, specific contradiction and curative admissibility, which have different threshold requirements. (Gilligan & Imwinkelried, Bringing the "Opening the Door" Theory to a Close: The Tendency to Overlook the Specific Contradiction Doctrine in Evidence Law (2001) 41 Santa Clara L. Rev. 807, 809-810, 836 (Gilligan & Imwinkelried).) Specific contradiction allows the admission of any evidence that squarely contradicts testimony given by the opposing partys witness on a material fact. (Id. at pp. 808, 810-811, 830.) In contrast, "a party may invoke curative admissibility only when earlier in the same trial the opponent succeeded in introducing inadmissible evidence," (id. at p. 824), thus justifying the introduction of rebuttal evidence, even though otherwise inadmissible, to the extent necessary to cure the resulting prejudice. (Id. at p. 829 & fn. 146; see generally 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §§ 352-354, pp. 439-442.)
Appellants reliance on Gambos in the present case is a paradigmatic example of the confusion discussed in the cited article. Gambos rejected a curative admissibility argument (phrased as an argument that "the door had been opened") that was offered in support of the admission of hearsay testimony concerning an otherwise inadmissible out-of-court statement by an available declarant. (Gambos, 5 Cal.App.3d at pp. 191-192.) It was in that context that the court made the "`popular fallacy" comment on which appellant relies here. (Id. at p. 192.)
In this case, however, it is clear from the record that when the parties and the trial judge used the term "opening the door" in reference to Hiness testimony, what they meant by it was not curative admissibility, but specific contradiction. Thus, our analysis focuses on that theory. Specific contradiction is a perfectly valid basis for impeachment. (People v. Cunningham (2001) 25 Cal.4th 926, 1025 ["Evidence tending to contradict a witnesss testimony is relevant for purposes of impeachment."]; People v. Lang (1989) 49 Cal.3d 991, 1017 [same]; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 921-924; see also Evid. Code, § 780, subd. (i); 3 Witkin, Cal. Evidence, supra, Presentation at Trial, §§ 238, 241, 345, pp. 307-308, 311 & 430.) Indeed, as the commentators remark, "recognizing the entitlement to specific contradiction impeachment is essential to the proper functioning of an effective adversary system of litigation." (Gilligan & Imwinkelried at p. 808; cf. Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733-734.)
Thus, we frame the issue differently. The question is whether the prosecutors probing of Hiness knowledge of appellants drug arrests between 1991 and the date of trial was properly allowed on a specific contradiction theory in order to impeach Hiness redirect testimony. The record makes clear that this line of questioning was aimed at eliciting evidence that would specifically contradict Hiness testimony that she was not aware of appellants having used cocaine since 1991.
The law review article we have cited focuses on the application of specific contradiction to the admissibility of evidence other than the adverse witnesss own testimony on cross-examination. (E.g., Gilligan & Imwinkelried at p. 808.) If extrinsic evidence would have been admissible to impeach a witness on a given point, however, cross-examination of that witness on that point is a fortiori proper. " ` "Any fact may be called out in cross-examination which a jury might deem inconsistent with the direct testimony of a witness . . . ." " (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1650, quoting People v. Linyard (1957) 151 Cal.App.2d 50, 56; cf. Kennemur v. State of California, supra, 133 Cal.App.3d at pp. 922-923 [impeachment of expert witness by contradicting matter on which opinion is based may be accomplished either by cross-examining expert or by calling another witness].)
This fact distinguishes McDaniel. In that case, a defense witness testified on direct only that he was familiar with the defendants good reputation at his workplace as a law-abiding citizen. (59 Cal.App.2d at p. 675.) The trial court then allowed the prosecutor, on an "open the door" theory, to ask about the witnesss personal knowledge of various irrelevant and extremely prejudicial facts about the defendant, such as his having performed abortions, fathered a child out of wedlock, and molested his daughter. (Id. at pp. 675-676.) The Court of Appeal noted that the reputation evidence was irrelevant, and went on to hold that its admission, without objection, did not justify the cross-examination of the witness regarding his own personal knowledge of various alleged illegal and immoral acts by the defendant. (Id. at pp. 676-677.)
In the terminology used by Gilligan & Imwinkelried, the cross-examination that the McDaniel court held improper did not meet the foundational requirements either of curative admissibility—because the prosecutor passed up the opportunity to object to the inadmissible direct testimony as to the defendants reputation (Gilligan & Imwinkelried, at pp. 825-829)—or of specific contradiction—because it did not flatly contradict anything the witness had said on direct (id. at pp. 829-831). In this case, on the other hand, Hiness redirect testimony was that to her personal knowledge, appellant had not used cocaine since 1991. The prosecutor was entitled to impeach the credibility of that assertion on recross by asking her about facts regarding appellants drug arrests which, based on her account of her relationship with appellant, she could reasonably be assumed to know, and which specifically contradicted her testimony. (Fredrics v. Paige, supra, 29 Cal.App.4th at p. 1650.)
U.S. v. Beckman (9th Cir. 2002) 298 F.3d 788, on which appellant relies, is also distinguishable on the latter basis. The defendant in that case was arrested in Calexico in the summer of 2000, immediately after crossing the border from Mexico. On direct examination, he explained that he was travelling at that time because of a desire to visit "unexplored territory." (Id. at p. 792.) The trial court permitted the prosecutor, on cross-examination, to ask the defendant about his arrest in San Diego in early 1999, arguing that this evidence impeached the defendants statement that southern California was "unexplored territory" for him. The Ninth Circuit held this was improper, because the prosecutions argument was based on a mischaracterization of the testimony, and the evidence of defendants previous visit to one particular southern California city did not specifically contradict his statement that he was in Calexico in connection with a journey to "unexplored territory." (Id. at pp. 792-793.) The court concluded, however, that the error was harmless, and affirmed the conviction.
In short, given Hiness testimony on redirect, the prosecutor was entitled to ask her, on recross, questions that were designed to impeach her on this specific point. Moreover, given Hiness prior testimony concerning her close association with appellant during the time between 1991 and the date of trial, she could be expected to have known when he was arrested during that time, and for what reason. Questions on this subject therefore constituted proper impeachment by specific contradiction of Hiness redirect testimony, even if evidence of appellants prior drug arrests was inadmissible under Evidence Code section 1101. (Cf. People v. Farnam, supra, 28 Cal.4th at pp. 187-188 [where criminal defendant testified on direct about his good conduct while previously incarcerated, trial court acted within its discretion in allowing prosecutor to cross-examine defendant about his escape from a correctional facility, even though evidence of defendants criminal conviction arising out of that non-violent escape was not admissible in aggravation under Penal Code section 190.3]; Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 945-947 [in civil action alleging police misconduct, where defendant police officer testified on direct that he had developed patience with people he arrested, trial court erred in refusing to admit evidence of officers other misconduct for impeachment purposes].)
3. Latricia King: Testimony
Kings direct examination, like that of Hines, was brief and straightforward. King testified that appellant was her ex-boyfriend, and that she had helped him get his catering business started by selecting menu items and designing flyers. In an apparent effort to provide appellant with an alibi for the Roe robbery, she also recalled that he had come to her home on 39th Avenue in Oakland early in the morning on October 7, though she was not sure of the exact time, and that he had spent a few hours there.
During the lengthy cross-examination that ensued, the prosecutor questioned King regarding appellants drug use during the period that he and King were dating, and, in considerable detail, regarding various acts of domestic violence that appellant committed against King. These subjects were first introduced when the prosecutor asked whether King and appellant had had "any problems in [their] dating relationship." After King responded by indicating that appellant had "an anger management problem," the prosecutor proceeded to ask whether that problem was related to appellants use of drugs, and specifically crack cocaine. King acknowledged that one of the reasons she and appellant had broken up was his use of crack cocaine during 1997. She also testified that appellant had harassed her, that this problem had worsened after they broke up, and that appellant had tried to steal money from her in 1996.
At that point, the prosecutor shifted gears and asked King how much contact she had with appellant in 1999. King responded "Not much," adding that she "didnt see him as much after 97 off and on." The prosecutor then asked whether King had a restraining order in 1997. Appellants trial counsel objected, and there was a conference in chambers.
When the judge and counsel returned to the courtroom, the prosecutor temporarily dropped the subject of the restraining order, and proceeded, in effect, to lay a foundation by eliciting further testimony from King about the frequency of her contacts with appellant in connection with the catering business. This topic was certainly well within the scope of the direct examination, and appellants trial counsel did not object at any point during this part of the cross-examination.
It was not until after King testified about her frequent telephone contacts with appellant that the prosecutor indicated an intent to return to the subject of the restraining order by asking that the relevant documents be marked for identification. At that point, and before any questioning had occurred, the jury was excused for the lunch recess, and the trial court had the prosecutor make an offer of proof regarding her intended use of the restraining order documents. Before the jury was recalled to the courtroom, the judge heard further argument on the matter from both counsel, and ultimately ruled that because of the reference in the restraining order documents to threats appellant made toward King, the documents were relevant to show that Kings testimony in appellants favor was motivated by fear of him. He also indicated that the degree to which he would allow the prosecutor to probe the details of appellants assaultive behavior would depend on whether King acknowledged her fear of appellant or denied it.
As it turned out, shortly after the cross-examination resumed, King did implicitly deny any fear of appellant, by testifying that "After I took out the restraining order, I have not to this day had a problem with Todd Pickens . . . verbally or physically or anything." Only after this testimony was on the record, and after a conference in chambers, did the prosecutor go into the details of a domestic violence incident that King reported to the police in December 1997, after the date the restraining order was issued. Then, during the course of that testimony, King volunteered that appellant had never physically abused her or hit her before. To impeach this latter testimony, the prosecutor had King testify about an earlier incident in which appellant had held a gun to Kings head and demanded money, as well as two incidents described in Kings restraining order application, one in which appellant pushed King into a wall and held a knife to her throat, and another in which he held a hot iron next to her face.
This and other unreported conferences regarding the cross-examination of King were summarized on the record later in the proceedings.
4. Latricia King: Appellants Contentions
Appellant argues that the trial court erred in allowing the prosecutor to bring in evidence of appellants prior criminal behavior during Kings cross-examination. Application of the principles discussed above in connection with Hiness testimony, however, together with a careful examination of the sequence of questions, reveals no error in the scope of cross-examination allowed by the trial court.
The redirect and recross-examination of King consisted only of further probing of her recollection regarding appellants presence at her home on October 7. Appellant does not raise any issues on appeal regarding these portions of Kings testimony.
To begin with, we concur with the trial courts decision to allow the prosecutor to question King about whether she and appellant had problems during their dating relationship, and if so, for what reasons. Given Kings direct testimony that appellant was her ex-boyfriend, questions about the reasons for the termination of the relationship were clearly within the scope of direct. Appellant does not argue otherwise. These questions were also relevant, because of the obvious possibility that the answers would reveal a bias on the part of the witness. (See generally 3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 267, pp. 338-340.) Moreover, by that point it was already in evidence that appellant had used cocaine during the late 1990s, had been in possession of it when he was arrested, and had experienced problems in another dating relationship (with Hines) because of it. Thus, we see no abuse of discretion in the trial courts having permitted the prosecutor to ask King whether her problems with appellant were related to his cocaine use. (See People v. Earp, supra, 20 Cal.4th at pp. 859-860; People v. Cooper, supra, 53 Cal.3d at p. 816.)
As for the domestic violence, the trial courts initial reason for allowing the prosecutor to question King about that subject was Kings testimony that she had spoken with appellant by telephone on almost a daily basis during a period of time when there was a domestic violence restraining order in effect precluding personal or telephone contact between appellant and King. In our opinion, the trial court correctly ruled that the prosecutor was entitled to question King about the restraining order in order to impeach her statements regarding the frequency of her telephone conversations with appellant during this period. The existence of the restraining order, which was issued at Kings request, tended to directly contradict her testimony, and was therefore properly introduced to impeach it.
Thus, as underlined by the jury instruction appellant later requested and received (see discussion post), the evidence that King had taken out a domestic violence restraining order against appellant was not admitted to prove his bad character or disposition to commit the charged offenses, as precluded by Evidence Code section 1101, but rather to impeach Kings testimony. Moreover, as is clear from our narrative of the sequence of Kings testimony, the prosecutors lines of questioning about specific incidents of domestic violence were also relevant and admissible to impeach Kings successive, volunteered statements about appellant: first, that she had not had a problem with him after the restraining order was issued, and second, that he had never abused her physically. The trial court correctly relied on a specific contradiction theory in allowing this testimony.
Appellant complains that the prosecutor did not squarely pose the question whether King was afraid of appellant until near the end of her cross-examination, after the domestic violence evidence had already come in. The question was not necessary, however, in order to make that evidence admissible for impeachment, because it went directly to the veracity of Kings volunteered statements. This presented another ground for using it to impeach King, separate and apart from its admissibility to show that her testimony in favor of appellant may have been induced by fear or pressure. (See generally 3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 269, pp. 340-342.)
People v. Harris (1998) 60 Cal.App.4th 727 (Harris), on which appellant primarily relies, is distinguishable on two grounds. First, in Harris the evidence of the defendants prior criminal acts was not admitted solely for impeachment, but to prove the defendants propensity to commit sex crimes under Evidence Code section 1108. In this case, the domestic violence evidence was admitted solely for impeachment, rather than to show appellants bad character or criminal propensity, and the jury was expressly instructed only accordingly. Second, in Harris the probative value of the evidence of the prior crime was held to have been far outweighed by its prejudicial effect. The facts regarding the prior crime were "inflammatory in the extreme" (60 Cal.App.4th at p. 738, italics in original); were presented to the jury in a confusing and distorted manner that posed a significant danger of confusion (id. at pp. 738-739); involved an incident that was very remote in time, having occurred some 23 years prior to the charged offenses (id. at p. 739); and lacked any significant probative value, including any tendency to bolster or detract from the credibility of the witnesses in the case (id. at pp. 739-741). Thus, even if those factors are relevant when evidence of prior crimes is admitted only for impeachment, none of them is present in this case.
Appellant also relies on other authorities in support of his contentions regarding the cross-examination of King, but none of them requires us to reach a different result. Two of the cases appellant cites, People v. Heckford (1957) 149 Cal.App.2d 250, 255 and People v. Wells (1949) 33 Cal.2d 330, 340, were decided before the enactment of Evidence Code section 780, effective in 1967. This statute changed the prior inflexible rule precluding impeachment on collateral matters to a more flexible rule leaving the matter to the trial judges discretion—a discretion we have already found not to have been abused in this regard. (Cal. Law Revision Com. com., 29B, Pt. 2, Wests Ann. Evid. Code (1995 ed.) foll. § 780, pp. 586-587; see 3 Witkin, Cal. Evidence, supra, Presentation at Trial, §§ 341-342, pp. 426-427.)
People v. Luparello (1986) 187 Cal.App.3d 410, though decided after the enactment of the Evidence Code, is inapposite to this case. In Luparello, a defense witness testified that one of the defendants wore a hat similar to those worn by members of a violent street gang. The prosecutor attempted, through his cross-examination, to introduce evidence that the defendant in question was a member of that gang. The court held that the cross-examination was prosecutorial misconduct, reasoning that raising a topic on direct examination "does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination." (Id. at p. 426.) The impropriety stemmed, however, from the fact that the evidence of gang membership was "irrelevant for any purpose other than to suggest [the defendants] predisposition to commit violent acts," and thus inadmissible under Evidence Code section 1101, subdivision (a). (Ibid.) The prosecutor did not argue that the testimony about gang membership contradicted anything in the witnesss direct testimony and thus was admissible to impeach the witness.
Appellant also cites People v. Pitts (1990) 223 Cal.App.3d 606, 771, which quoted this passage from Luparello in finding prosecutorial misconduct during the cross-examination of a testifying defendant. In Pitts, however, the court noted that the cross-examination it found to have been prosecutorial misconduct "was not necessary to impeach [the defendants] credibility" in denying her commission of the charged crimes. (Ibid.) The Pitts court also noted that the subject matter of the cross-examination was mostly "inference and innuendo" rather than evidence. (Ibid.) The other cases relied on by appellant in arguing that the cross-examination of King constituted prosecutorial misconduct are similarly distinguishable.
In short, none of the arguments and authorities on which appellant relies convinces us that the trial court erred in permitting the prosecutor to cross-examine King regarding the abuse she suffered at appellants hands. Nor do we find that the prosecutor committed misconduct.
5. Latricia King: Limiting Instruction
After the conclusion of Kings testimony, at the request of appellants counsel, the court agreed to instruct the jury that it could consider the evidence of the disputes between appellant and King only "for the limited purpose of determining [Kings] credibility," and "not . . . to prove that [appellant] is a person of bad character or that he has a disposition to commit crimes." The trial court gave the instruction twice, and appellants trial counsel reiterated and emphasized it during his closing argument. Appellant contends that this repeated limiting instruction "could not cure the damage done during [Kings] cross-examination," because it was not given more contemporaneously, and specifically because it was not given before appellant testified.
This argument is of no avail, for two reasons. First, while appellant cites numerous cases supporting the use of limiting instructions when evidence of prior criminal activity is admitted against a defendant, he has provided us with no authority holding that such instructions must be given at a certain time in order to be effective. Second, appellants trial counsel did not request that the trial court give the limiting instruction at the time appellant now contends it should have been given, i.e., between the end of Kings testimony and the beginning of appellants, which occurred immediately thereafter. By failing to give the trial court an opportunity to consider such a request, appellant has waived any argument that the instruction should have been given at that particular time.
Finally, appellant contends that the prosecutor, in her closing argument, improperly relied on the domestic violence evidence for purposes beyond those for which it was admitted. What the record shows is that in reviewing the defense case, the prosecutor focused at some length on the contention that Kings testimony was not credible. Almost all of her argument about the domestic violence evidence went directly to that issue, and was therefore proper.
Only near the end of this part of her argument, after referring to a statement King acknowledged making to the Oakland police about appellants "always getting away with stuff," did the prosecutor add in passing that "that is exactly what [appellant] is trying to do here. Hes trying to get away with stuff. Those four robberies." In context, the thrust of this argument was not that appellants history of domestic violence proved anything about the likelihood of his having committed the charged robberies. Rather, it was that appellant had offered untrue testimony in his defense. Thus, we do not find that this brief passage constituted prosecutorial misconduct. We note also appellants trial counsels failure to object to it or request a curative instruction, which waived any such claim.
B.
Improper Cross-Examination of Appellant
At several points during her cross-examination of appellant, the prosecutor pointed out inconsistencies between appellants testimony and that of other witnesses. The first time this happened, she followed this up by asking appellant whether the other witness had been lying, and appellants trial counsel objected. A conference was then held in chambers, at which appellants counsel conceded that it was appropriate for the prosecutor to confront appellant with the inconsistencies between his testimony and that of other witnesses, but contended that it was misconduct for the prosecutor to ask the defendant to speculate on the veracity of other witnesses. In response, the trial court instructed the prosecutor not to ask appellant to speculate as to whether another witness was lying.
As before, the substance of the unreported conference was later placed on the record outside the presence of the jury.
Despite this admonition, when the cross-examination resumed, the prosecutor asked appellant whether the other witness (Hines) had been lying or telling the truth when she said, contrary to appellants testimony, that he did not have a key to her house. Appellants counsels objection was overruled, and appellant answered that he did not know, and did not remember whether or not he had a key.
The next time the prosecutor confronted appellant with an inconsistency and asked if the other witnesses had been lying, the trial court sustained appellants counsels objection. The prosecutor rephrased the question so that she reiterated the witnesss testimony and then asked whether the witness was telling the truth or not. This time, the objection was overruled, and appellant answered that he did not know. The prosecutor then used the same method to ask the question about another witnesss testimony on the same subject, and got the same answer. She also asked appellant whether Sergeant Medeiros had been inaccurate in his version of what happened when appellant was interviewed after his arrest, and appellant responded that his own recollection was different, and that he did not know whether Medeiros had made up the information reflected in his interview notes. Finally, at the end of her cross-examination, the prosecutor asked whether the robbery victims were not being truthful when they identified appellant as the person who robbed them. In response, appellant repeated his assertion that he was not the robber.
Appellant contends that in limiting his admonition to the prosecutor to the direction that she avoid the word "lying," and permitting her to continue to ask appellant the same question phrased in another way, the trial court elevated form over substance. He argues that the prosecutors questions remained improper even after being rephrased. Appellant concedes that there is no published California case precluding this form of cross-examination, but points to cases from other jurisdictions holding it to be prosecutorial misconduct. (See, e.g., U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1219-1221.)
In People v. Foster (2003) 111 Cal.App.4th 379, which was decided after the completion of briefing in this case but before oral argument, the court summarized the case law from other jurisdictions on this point. (Id. at pp. 383-385.) The Foster court concluded, however—as we do here—that it was not necessary to decide the question in the case before it.
We agree that the trial courts reading of these cases only to preclude use of the word "lying" was overly narrow. We also agree that the prosecutor was overzealous when she used the word "lying," in regard to Hines, even after the trial court had instructed her not to do so. (See generally People v. Smithey (1999) 20 Cal.4th 936, 960-961.) Nonetheless, we need not determine in this case whether to adopt the rule advocated by appellant, because even if it was error to allow the prosecutors questions, it is clear to us from the record that it was harmless.
Appellant acknowledges that a harmless error standard applies to our review of this issue. (See U.S. v. Sanchez, supra, 176 F.3d at p. 1218.)
As appellant concedes, the prosecutor was fully entitled to point out the inconsistencies between appellants testimony and that of the other witnesses. Moreover, when asked whether or not the other witnesses were testifying truthfully, appellant responded either by stating that he did not know, or by reiterating his own testimony. Thus, whatever the prosecutor may have intended in asking these questions, the fact is that they did not enable her to put before the jury anything she would not have been entitled to point out in closing argument. The irreconcilable conflicts between appellants testimony and that of other witnesses clearly entitled the jury to conclude, if it chose to do so, that someone had testified untruthfully. The jury instructions plainly, and properly, informed the jurors that counsels statements were not evidence, and that it was their job, and theirs alone, to assess the witnesses credibility. Thus, while not condoning the prosecutors cross-examination technique, we do not find it to have resulted in reversible error in this case.
C.
Exclusion of Defense Evidence
As already indicated, the thrust of appellants defense case at trial was that the robberies had been committed by another person, and that the victims had simply misidentified him. Appellant argues that the trial court denied him the opportunity to present a complete defense in this regard through the cumulative effect of the following three rulings: (1) excluding evidence of other another robbery (the Morris robbery) that was committed in the Rockridge area during the same time period, as to which appellant was not identified as the perpetrator; (2) denying appellants request to obtain Grimms fingerprints, so that he could establish that a fingerprint taken from her drivers license immediately after the robbery, which was stipulated not to be appellants, also was not Grimms, and (3) preventing appellant from establishing that certain personal information about him, which the police contended they had obtained from their interview of appellant, could in fact have been given to the police by his friend and co-arrestee, Henry Lindsey, thereby bolstering appellants claim that appellants alleged confession was a fabrication. We address each of these rulings in turn.
Evidence of third-party culpability, like other evidence, is admissible unless its probative value is outweighed by the risk of undue delay, prejudice, or confusion, thus warranting its exclusion under Evidence Code section 352 (section 352). (People v. Hall (1986) 41 Cal.3d 826, 834.) In this case, the prosecution argued persuasively that if appellant was permitted to introduce evidence of the Morris robbery, then it should be permitted, in rebuttal, to admit evidence of additional similar robberies that occurred in the Rockridge area at about the same time, in which the victims descriptions of the robber bore a strong resemblance to appellant. We concur with the trial courts exercise of its discretion under section 352 to exclude all of the evidence of other similar robberies, including that offered by appellant. Its probative value was minimal, and introducing it would have entailed significant delay, prejudice, and confusion.
Similarly, the exculpatory effect of proving that the fingerprint on Grimms drivers license belonged to a third party would also have been minimal. Appellant contends that obtaining and admitting this evidence would have allowed him to argue to the jury that the fingerprint belonged to the perpetrator of the robbery, who therefore must have been someone other than appellant. It had already been established, however, that the print did not belong to appellant, which had far more exculpatory weight than proving that it also did not belong to Grimm. Indeed, Grimm testified that other people frequently handled her license for totally innocent reasons. Thus, proving that the fingerprint belonged not to Grimm but to a third party would have added little if any weight to appellants contention that some person other than himself was the robber. The trial court did not abuse its discretion in denying appellants request. Taking a fingerprint from Grimm, and having an expert testify regarding its comparison with the print on the license, would have consumed far more time than was warranted by the potential probative value of such evidence.
Finally, we find no reversible error in the exclusion of appellants proffered testimony about his disclosure of personal information to Lindsey. We accept appellants argument, which respondent does not seriously contest, that the testimony was not hearsay, the sole ground asserted and sustained for its exclusion. It was not offered to prove the truth of its contents, but only to establish a possible alternative source for information that the police contended was obtained from their post-arrest interview of appellant.
The error was harmless, however. As the trial court pointed out, if appellant had testified as to what he told Lindsey, for the purpose of arguing that Lindsey passed it along to Medeiros, the prosecution would have been entitled to rebut this evidence by introducing the content of Lindseys statement to the police. Given that appellant had successfully argued that Lindseys statement should be excluded on hearsay grounds, we assume its contents were not helpful to appellants case, and would not have corroborated his contention that the police had actually gotten their information about appellant from Lindsey rather than from appellant. Even setting aside this speculation, the fact remains that appellants contention was extremely unpersuasive, given the extent and nature of the information that Medeiros testified he had learned from his interview of appellant. Thus, the probative value of the proffered defense evidence was so minimal that its exclusion has not been shown to have prejudiced appellant.
Appellant also argues that even if each of the asserted evidentiary errors was harmless in and of itself, their cumulative effect was to deny him a fair trial. We have rejected all but two of appellants claims of evidentiary error, and have found the two that remain to have been harmless when considered separately. We likewise find them harmless even when considered cumulatively.
D.
Denial of Motion to Sever
Prior to his trial, appellant moved to sever the robbery counts of the information from one another. After an extended colloquy with both counsel, the trial court denied the motion, although he ordered the drug possession charge to be tried separately. Appellant contends that the motion should have been granted, arguing that the trial court erred in finding that the evidence regarding the different robberies would have been cross-admissible in separate trials, and that the joint trial prejudiced him because the evidence against him on the Roe count was significantly stronger than that supporting the Angel and Babst/Grimm counts.
At the outset of the hearing on the motion, appellant conceded that the Babst and Grimm robberies could be tried together, because they occurred simultaneously.
As appellant concedes, we review the trial judges ruling on the motion to sever for abuse of discretion, reversing only if the denial fell outside the bounds of reason. (People v. Ochoa (2001) 26 Cal.4th 398, 423.) It is evident from the record that the trial judge in this case gave careful consideration to the issues raised by the motion, and was well-versed in the applicable law. For the reasons explained below, we conclude that the trial judge properly exercised his discretion in denying the motion.
The principles applicable to motions to sever have been summarized by our Supreme Court as follows. "The law prefers consolidation of charges. [Citation.] Where, as here, the offenses charged are of the same class, joinder is proper under section 954. [Citations.] [A criminal] [d]efendant can predicate error in the denial of the motion only on a clear showing of potential prejudice. [Citations.] . . . . [¶] We have developed criteria to guide evaluations of trial court decisions on severance motions. ` "`Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. " [Citation.] [¶] Cross-admissibility of evidence is sufficient but not necessary to deny severance. [Citation.]" (People v. Ochoa, supra, 26 Cal.4th at p. 423.) The court has also counseled that the "determination whether [appellant] was prejudiced by joinder requires us first to examine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
In keeping with this approach, the trial judge in this case began his analysis of the severance motion by determining whether the evidence of the various robberies would be cross-admissible if they were tried separately, applying the tests discussed in People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt) for cross-admissibility under Evidence Code section 1101. The prosecution here contended that the evidence would be cross-admissible on either of two grounds: to show that each robbery was part of a common design or plan by appellant, or to show identity, i.e., to prove that appellant was in fact the person who committed each robbery.
In Ewoldt, the Supreme Court explained that when evidence of other crimes is admitted to show a common design or plan, the purpose must be to show that the defendants actions were consistent with those charged. "Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, `[i]n proving design, the act is still undetermined . . . . [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics in original.)
Based on this analysis, the Ewoldt court noted that other crimes evidence will not be admissible to show common design "in most prosecutions for crimes such as burglary and robbery," because in such cases, "it is beyond dispute that the charged offense was committed by someone[, and] the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value." (Ewoldt , supra, 7 Cal.4th at p. 406.) In light of this discussion, which is on all fours with the present case, the trial judge correctly rejected the prosecutions contention that the evidence would be cross-admissible to show a common design or plan, and held that it could only come in on the issue of identity.
On that issue, the trial judge duly noted the Ewoldt courts admonition that "[t]he greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] `The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403.)
Even under this strict test, the trial judge found the robberies charged here sufficiently similar and distinctive to make them cross-admissible. He relied on the following factors: the robberies all occurred within a few blocks of one another during a five-day period (with two incidents on the same day); the perpetrator was over six feet tall, wore a distinctive blue hooded jacket, and kept at least one hand in his pocket in a way that made it look as if he had a gun; and in each case, the robber approached on foot a White female who was (or appeared to be) alone on the street, demanding only the victims cash. Given all of these common factors, we concur in the trial judges assessment that it is extremely improbable that these robberies could have been committed by different individuals. Thus, we can find no abuse of discretion in his conclusion that the crimes with which appellant was charged were sufficiently similar, and sufficiently distinctive, to meet the standard articulated in Ewoldt for cross-admissibility on the issue of identity.
Grimm was in fact accompanied by Babst, but the evidence indicated that Babst was not visible to the robber as he approached Grimm.
Because the evidence would have been cross-admissible to prove identity, if the motion to sever had been granted, each of the juries would each have heard the evidence of all three robbery incidents. Thus, even if we were to accept appellants contention that the evidence of his culpability was materially stronger in the Roe robbery than in the other two incidents, we still would find no prejudice from trying the offenses together.
Our review of the severance issue could stop there. (People v. Bradford (1997) 15 Cal.4th 1229, 1315-1317.) Nonetheless, we have also considered the alternative ground that the trial judge gave for his ruling, rejecting appellants contention that the quantum of evidence in the three incidents was so different that a joint trial would result in a prejudicial "spillover effect." We agree. (Cf. People v. Arias (1996) 13 Cal.4th 92, 128-130.)
Although there was a higher quantum of circumstantial evidence corroborating appellants identification as the perpetrator of the Roe robbery, the overall strength of the evidence that appellant committed the Grimm/Babst robberies was very nearly equal, given Grimm and Babsts highly confident, mutually corroborating identifications of appellant as the man who robbed them. Thus, at least as to these three counts, appellant was not prejudiced by any "spillover" effect. (See People v. Bradford, supra, 15 Cal.4th at pp. 1317-1318.) Appellant argues that the evidence on the Angel robbery was significantly weaker, but this does not alter our conclusion, because the jury was unable to reach a verdict on that count. This fact in and of itself indicates that the jury properly carried out its duty to weigh the evidence on each count separately, and further negates any claim of prejudice from the denial of the motion to sever. (Cf. People v. Ruiz (1988) 44 Cal.3d 589, 607; People v. Moore (1986) 185 Cal.App.3d 1005, 1013.)
IV.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.