Opinion
D070030
05-08-2017
THE PEOPLE, Plaintiff and Respondent, v. LAVALLE MARCELLE PORTER, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263061) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Lavalle Marcelle Porter appeals from a judgment entered after a jury convicted him of assault with a deadly weapon and battery. Porter contends that the trial court abused its discretion in excluding recordings of 911 telephone calls he initiated 18 days prior to the incident for which Porter was convicted. In those 911 calls, Porter complained about a group of men menacing him at two locations, one of which is the same location where the offense in this case occurred. According to Porter, the trial court abused its discretion in excluding the recordings of his 911 calls, which he contends supported his claim that he acted in self-defense when he attacked the victim in this case. Porter also contends that the court's ruling violated his constitutional right to due process.
We conclude that the trial court did not abuse its discretion in excluding evidence of the 911 calls, and that the exclusion of this evidence did not violate Porter's right to due process. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
R.D. was riding his bicycle on a San Diego trolley platform shortly after 5:00 a.m. on the morning of July 23, 2015. R.D. rode his bicycle past Porter, who had been standing by himself on the trolley platform. As R.D. rode by Porter, Porter lunged toward R.D. Porter grabbed R.D. and caused him to fall off of his bicycle. Porter then repeatedly struck R.D. in the head with a metal object—multiple six-inch copper wires, braided together, covered in a hard plastic sheath. The object was approximately three quarters of an inch in diameter, weighed about one pound, and had "a little bit of sharpness to it."
As Porter repeatedly struck R.D.'s head, R.D. said, " 'Stop. What the hell are you doing that for? I don't even know you. Who are you?' " At some point, R.D. fell to his hands and knees, and Porter continued to strike R.D.
The video surveillance system at the trolley station recorded the attack. In addition, a police officer who was in his patrol car nearby witnessed the attack and identified Porter as the aggressor. The officer quickly approached R.D., who was bleeding and appeared to be injured and in pain. R.D. pointed at Porter, who was standing nearby, and said to the officer, " 'That guy,' . . . 'Beat him up.' " The police officer called for medical assistance, waited for additional officers or paramedics to arrive, and then went to speak with Porter.
The police officer who spoke with Porter initially found him to be not "very responsive." The officer believed that Porter was either "under the influence of a controlled substance," or possibly having "a psychotic break," such that the officer became somewhat concerned about his own safety. The officer saw that Porter was holding an object in his hand, and repeatedly asked Porter to put the object down. Porter did not respond and did not comply. The officer eventually returned to his car to retrieve his police dog because he continued to be concerned for his own safety. The officer then approached Porter and "push[ed]" him, which seemed to "jog[ ] his memory." After the officer pushed him, Porter began to comply. The officer was able to ascertain that Porter was holding a "six-inch copper wire, about three quarters [of an inch] in diameter, with a plastic sheathing around it." The wire object appeared to be the instrument with which Porter had attacked R.D. The officer arrested appellant for assault with a deadly weapon.
As a result of the attack, R.D. suffered a deep laceration and a circular contusion on the top of his head. The wound on top of his head reached the deeper layers of connective tissue and muscle, and required a deep suture, which is a permanent suture underneath the skin. R.D. also suffered some bruising on his back, along his ribs. B. Procedural background
A jury convicted Porter of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and battery (Pen. Code, § 242). The jury also found true the allegations that during the commission of the assault, Porter personally inflicted great bodily injury (Pen. Code, §§ 12022.7, subd. (a) and 1192.7, subd. (c)(8)) and personally used a deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)).
In a bifurcated proceeding, the jury found true allegations that Porter had served four prior prison terms (Pen. Code, § 667.5, subd. (b)) and had suffered a prior serious felony (Pen. Code, § 667, subd. (a)), which also constituted a prior strike (Pen. Code, § 667, subd. (b)-(i)).
The trial court sentenced Porter to a total of 19 years in prison. Porter filed a timely notice of appeal.
III.
DISCUSSION
A. Additional background
During trial, Porter moved to admit recordings of 911 telephone calls that he had placed on July 5, 2015, arguing that the calls demonstrated his state of mind on July 23, the day he assaulted R.D. During the series of three calls, which occurred between 1:30 and 1:48 p.m., Porter told dispatchers that a group or groups of people were following and/or bothering him. For example, in the first call, Porter reported that he was on a trolley that was stopped at the Santa Fe trolley station and that there were "a lot of males moving around me." He continued, "Nah, they're moving up on me in a stealthful manner as if they're trying to ambush me. . . . They moving around me all weird." The dispatcher asked if he needed police contact, to which he responded, "Yeah." Porter indicated to the dispatcher that the men looked Hispanic, and said that he could not say how many there were. Porter became agitated with the dispatcher and continued to talk over her as she attempted to ask him questions. He told the dispatcher that he had not been drinking or using drugs that day, but then said that he had "been up all night," and that he could not "even go to sleep." The dispatcher ended the call after telling Porter that she would have someone contact him.
The July 5th calls were not transcribed. A computer disk of audio recordings was offered as an exhibit in the trial court. The trial court exhibit of the audio recordings was transmitted to this court for purposes of this appeal.
In a second call, recorded at 1:37 p.m., Porter can be heard saying, "There's people moving around me in a manner in which it look like they gonna try to put their hands on me." He indicated that he was "at the C street trolley," at "Fifth Avenue." "They trying to creep on me." He told the dispatcher that the people were "just trying to hurt me." He explained that he knew this "because of how they're moving around me." Porter contended that there were approximately six people around him. When the dispatcher asked Porter whether the people had threatened him, he responded that they were "moving around [him]." He said that he did not "let nobody get near [him]," even though they were "walking all around." He contended that the people were "trying to hide behind a little thing right here the little metal thing." Porter told the dispatcher that the people "got weapons," including "knives," "on their pockets." The dispatcher told Porter that she would have someone "check the area."
During the third call, at 1:48 p.m., Porter can be heard mumbling, but it is not clear what he is saying at the beginning of the call. When he subsequently began speaking clearly, Porter said to the dispatcher, "Yes, I am being surrounded by people and look like they're gonna to try to jump on me." He continued, "And I'm not trying, I'm not trying to get into it with nobody, that's all." This time he told the dispatcher that approximately 20 people were "trying to jump [him]." He asserted that the people were "black, Hispanic, all colors, white." Although he stated that he believed that the people were armed with knives, he conceded that no one had threatened him with a knife. The dispatcher told Porter that she would let "someone know" and said, "They'll be out there as soon as they can."
The San Diego Police Department provided the prosecutor with the Computer Aided Dispatch (CAD) report that supplemented the 911 calls. The prosecutor proffered to the court the contents of the CAD report, which included a notation from security personnel who were present at one of the trolley stations from which Porter placed one of his 911 calls on July 5. The prosecutor explained that the notation was as follows: " 'Trolley S-E-C has visual on camera. Male is sitting alone, looks paranoid, looking around, talking to himself/holding B-L-K S-W-T-R,' which I believe to be 'black sweater,' 'in his hand. Poss in white t-shirt with lettering on the back.' [¶] . . . [¶] . . . 'on the back/other S-U-B-J-S,' which I believe to be 'subjects' - 'other subjects sitting far from the male.' "
The trial court reserved ruling on whether to admit the recordings of the 911 calls. The court believed that the admissibility of the calls hinged on whether Porter testified, and what his testimony might be.
When the court revisited the matter, defense counsel again argued that the calls were relevant to demonstrate Porter's state of mind at the time he attacked R.D. The prosecutor objected, arguing that the fact that 18 days had passed between the two events, as well as Porter's admissions on the calls (i.e., that no one had threatened him or even talked to him), rendered the calls irrelevant. The prosecutor also argued that the calls should not be admitted under Evidence Code section 352 because the admission of the evidence would result in an undue consumption of time and could confuse the jury.
Further statutory references are to the Evidence Code unless otherwise indicated.
The trial court ultimately excluded the evidence regarding Porter's July 5, 2015 911 telephone calls, primarily on relevance and section 352 grounds, explaining that "there's nothing that even links the July 5th calls to the events of July 23rd." B. Applicable law
The trial court stated that it would be willing to reconsider its ruling during the defense's presentation of evidence, if defense counsel so requested. The next mention of the court's ruling was after the parties had rested and the jury was deliberating. During a conference in chambers, Porter raised the question of the court's ruling with respect to the 911 call recordings. The court responded that although the court had been open to reconsidering the ruling, after hearing Porter's testimony, "My ruling still remains the same in that based on his testimony, I feel that admission of the 911 tape relating to the July 5th incident is, no. 1, not relevant; and, no. 2, even if relevant under 352, would be confusing and engage in a consumption of undue time."
All relevant evidence is admissible except as otherwise provided by a statutory or constitutional exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); § 351.) Relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) The general test of relevance " 'is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (People v. Bivert (2011) 52 Cal.4th 96, 116.) However, if evidence leads only to speculative inferences, it is irrelevant. (People v. Morrison (2004) 34 Cal.4th 698, 711.)
In addition, evidence that is relevant under the above standards may nevertheless be excluded if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; People v. Lee (2011) 51 Cal.4th 620, 643 (Lee).) A trial court possesses broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 permits its exclusion. (People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584, 634.)
With respect to the constitutional issue raised by Porter on appeal, it is clear that a defendant has the general right to present a defense. (Washington v. Texas (1967) 388 U.S. 14, 19.) The California Supreme Court has recognized that " 'Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.' " (People v. Babbitt (1988) 45 Cal.3d 660, 684 (Babbitt).) The right to present evidence in support of one's defense is not without limits, however, as the Babbitt court made clear: " 'We do not mean to imply . . . that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.' " (Ibid.) Thus, it has been accepted that " '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.' " (People v. Blacksher (2011) 52 Cal.4th 769, 821.) Therefore, "[a]lthough the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Given the broad discretion granted to the trial court in making rulings with respect to relevance and section 352 considerations, we review a trial court's rulings on the admissibility of evidence, including those turning on the relevance or probative value of evidence, for an abuse of discretion. (Lee, supra, 51 Cal.4th at p. 643; People v. Hamilton (2009) 45 Cal.4th 863, 930.) To the extent that Porter is asserting that the trial court's ruling excluding this evidence amounted to a deprivation of his constitutional right to due process, we assume for purposes of this decision that the de novo standard of review applies in determining whether the court's exclusion of the evidence violated Porter's constitutional rights. (See People v. Seijas (2005) 36 Cal.4th 291, 304 ["independent review 'comports with this court's usual practice for review of mixed question determinations affecting constitutional rights' "].) C. Analysis
Porter's defense was that he acted in self-defense. "Perfect self-defense requires that a defendant have an honest and reasonable belief in the need to defend himself or herself." (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168, italics added.)
Perfect or ordinary self-defense (see People v. Valencia (2008) 43 Cal.4th 268, 288), is to be distinguished from imperfect self-defense, which is " 'not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter.' " (People v. Elmore (2014) 59 Cal.4th 121, 134.) " 'Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1048, first & third italics added.) Thus, so-called imperfect self-defense is a doctrine employed in certain homicide cases, while ordinary or perfect self-defense, which requires that the defendant's belief that the need for self-defense have been both actual and reasonable, may be available with respect to a broader range of offenses. (Compare 1 Witkin, Cal. Crim. Law (4th ed. 2012) Defenses, § 67 with § 82.)
The 911 calls that Porter sought to admit occurred 18 days prior to his unprovoked attack on R.D. Further, the prosecutor proffered that Porter's 911 calls would not provide evidence that Porter reasonably believed that he was actually in any danger, even at the time he made them, given the CAD notes indicating that at the time Porter placed the calls, he was " 'sitting alone . . . talking to himself,' " and appeared to be " 'paranoid.' " Thus, the fact that Porter made these 911 calls and may have unreasonably believed that he was being followed by a group of men on July 5th does not tend to demonstrate that he held a reasonable belief that he had to defend himself against the victim, who did not speak to or otherwise communicate with Porter, 18 days later. The trial court therefore acted well within its discretion in concluding that the 911 calls were not relevant to Porter's self-defense theory.
Porter's responses to the 911 dispatcher also cast doubt on the existence of any real threat to him on the day he placed the calls. He acknowledged, when asked, that the group of men he was ostensibly calling in reference to had neither spoken to him nor threatened him.
Further, even if one were to conclude that the 911 calls had some minimal relevance, the trial court acted well within its discretion in excluding the calls under section 352. "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.) As we have explained, we doubt that this evidence had any probative value, but even if one were to conclude otherwise, it is nevertheless clear that any probative value would be exceedingly minimal. The trial court thus did not abuse its discretion in determining that any minimal probative value of this evidence would have been outweighed by the amount of time it would have taken to play the recordings of the calls and to present other evidence to provide further context, or to present evidence to challenge the weight to be given to the recordings, as well as the potential for juror confusion arising from the introduction of the calls.
We conclude that the trial court did not abuse its discretion in excluding the evidence of Porter's July 5th 911 calls. Under these circumstances, the trial court's evidentiary ruling regarding these 911 calls also did not violate Porter's constitutional right to present a defense. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [" 'Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense' "].)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. DATO, J.