Opinion
F040187.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND RAY PRICE, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and James B. Damrell, Deputy Attorneys General, for Plaintiff and Respondent.
In December 2001, the Fresno County District Attorney filed a first amended consolidated information in case Nos. 658656-4 and 659521-9 charging appellant, Raymond Ray Price, with one count of first degree burglary of an inhabited dwelling. (Pen. Code, §§ 459/460, subd. (a).) The information alleged that appellant suffered six prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(d). The information further alleged that appellant suffered a prior serious felony conviction ( § 667, subd. (a)(1)) and served two prior prison terms ( § 667.5, subd. (b)).
Further statutory references are to the Penal Code unless indicated.
On December 17, 2001, the court granted appellants motion for a bifurcated trial on the prior prison terms and strike allegations. A jury was impaneled the following day.
On December 21, 2001, outside the jurys presence, the prosecution moved to amend the first amended consolidated information to include an additional strike allegation for a 1981 robbery conviction and remove the section 245, subdivision (a)(1) strike allegation. The court granted the motion. Appellant, having previously waived his right to a jury trial on the issue of his priors, admitted the prior strike allegations and prison terms. Later that day, the jury found appellant guilty of first degree burglary.
On March 12, 2002, the court denied appellants motion for a new trial. The court sentenced appellant to an aggregate term of 35 years to life: 25 years to life for first degree burglary, plus two 5-year section 667, subdivision (a) enhancements, and two 1-year section 667.5, subdivision (b), enhancements, which the court stayed pursuant to section 654. Appellant filed a timely notice of appeal.
On appeal, appellant contends that the trial courts refusal to allow him to show why the identifying victim gave a false name to the police denied him due process of law by denying him the opportunity to present his chosen defense, and the trial court erred in giving CALJIC No. 2.52, the flight after crime commission instruction. We reject both contentions and will affirm the judgment.
FACTS
On December 25, 2000, at about 5:45 a.m., Fernando Prado was asleep with his girlfriend, Maria Flores, in one bedroom of her two-bedroom apartment on Pleasant Avenue. Their four children were asleep in the other bedroom. Prado was awakened by a noise and saw a light from within the apartment. It was still dark outside. Prado thought one of his sons might be watching television. When he went outside his bedroom and into the hallway, he noticed the light was coming from the front door, which was wide open. In the dim light, Prado saw a man walking through the kitchen toward the living room holding a plastic container of apple juice up to the light. The man was wearing a big jacket and a "brownish" fishing hat.
Prado went back into the bedroom and told Flores that someone was in the apartment and not to be afraid. Prado waited to see if the man would leave the apartment. When the man headed towards the bedrooms, Prado, who was about 10 feet from the man, shouted "get out." Prado did not get a good look at the mans face, but he did see his hat. The man left the apartment. Prado told Flores to go to their neighbors for help and he ran outside to make sure the man left. Flores briefly followed Prado outside the apartment. Prado told Flores to call the police. Flores went to the neighbors house and called the police. When Prado went out to the sidewalk, he saw a police car driving down the street with its emergency lights on. Prado assumed the car was going after the man, whom Prado and Flores saw run down the sidewalk.
When Flores returned to her apartment, she found the television, which was normally on a bookshelf, lying on the floor of the living room. Flores did not see the remote control to the television, which was usually kept next to it, and the wood cleaning spray she left on top of the television was also missing. Upon further inspection, Flores noticed the chair, which usually sat outside by the front door, had been moved to an area under her bathroom window. Flores described the suspect as wearing a dark jacket and a dark "beanie" style hat.
About 5:30 a.m. that same morning, Fresno Police Officer Patrick Mares was dispatched to Pleasant Avenue, just south of Dakota, to look for a person involved in a car vandalism incident. The dispatch described the suspect as a Black male wearing a beige hat and a beige jacket. Officer Mares believed the dispatch also described the suspect as being bald and 40 years old, with a light jacket.
As Officer Mares drove near the location of the reported vandalism, he noticed a Black male, whom he later identified as appellant, jogging northbound on Pleasant Avenue from the approximate location where the vehicle vandalism occurred. Appellant was running in the same direction as the man Prado had seen run from the apartment. Officer Mares testified that appellant was wearing a beige fishing-style cap, tan corduroy pants and a heavy tan jacket. Appellant waved at Officer Mares. Officer Mares waved back and turned his vehicle around to follow appellant. Appellant then turned into an apartment complex.
Officer Mares drove into the parking lot of the apartment complex and got out of the car to look for appellant on foot. Officer Mares found appellant in the middle of the complex. Officer Mares told appellant he was a police officer and wanted to talk to him. Appellant replied "no" and began running away. While chasing after him, Officer Mares identified himself as a police officer several times and ordered appellant to stop. Appellant continued to yell "no" in response and kept running. Officer Mares was finally able to stop appellant after appellant fell while attempting to jump a wall. Additional officers arrived to assist Officer Mares in placing appellant under control. Police officers found a Sony remote control, a can of Pledge wood polish and other assorted items in appellants jacket pockets. When appellant was detained, he had the same fishing hat on his head as the one Officer Mares saw on the man jogging on Pleasant Avenue.
Around that time, Officer Mares received a second call reporting the burglary that occurred three blocks away at Prados residence. Officer Mares drove to that residence and spoke with Prado. Officer Mares testified that when he was questioning Prado, he asked Prado his name. Officer Mares believed Prado told him his name was Francisco Flores, although Officer Mares could not recall if he assumed Prados last name was Flores or if Prado told him his last name was Flores. Officer Mares did not remember Prado telling him his name was Fernando Prado. Officer Mares learned Prados first name was Fernando when Officer Mares returned to the scene two days later to get additional information from Flores, but did not learn his last name was Prado until the preliminary hearing.
Officer Mares inspected the apartment and found the television unplugged and in the middle of the living room. Prado directed Officer Mares to the bathroom, where the officer found the window open and mud inside the tub.
Prado told Officer Mares that a Black male in dark clothing wearing a big jacket and a beige fishing-style hat was in the apartment that morning. Officer Mares asked Prado if he could recognize the individual. Prado replied that he thought he could recognize the face, but was positive he could identify the fishing hat. After giving Prado a field show-up admonition, Officer Mares took him in the back seat of his patrol car to where appellant had been detained, which was about three streets north of the apartment.
When Prado arrived where appellant was, appellant was sitting on the sidewalk. Appellant was asked to stand and a spotlight was shined on him. Officer Mares asked Prado if appellant was the person he saw in his apartment that morning. Prado, who was about 25 or 30 feet away from appellant and still sitting in the police car, responded, "Absolutely. ... I especially recognize the hat." Prado testified he identified appellant based on his beige fishing hat and big jacket. Prado did not recognize appellant in the courtroom at trial, although he recognized the fishing hat introduced into evidence as the fishing hat he saw on the person who was in his home. Prado testified when he identified the man on the day of the burglary, he was certain he was the same person who was in his home.
Prado also identified the can of Pledge wood polish and the Sony remote control as possessions from the apartment. Flores later confirmed that these items were hers. Prado testified that when he returned to the apartment, he used the remote control and it worked with the television. Prado testified that when the officer asked for his name, he told him it was Fernando Prado. Prado denied giving the officer the name Francisco Flores, although he did give the officer the name "Flores" to identify his girlfriend.
After Officer Mares placed appellant under arrest for burglary, appellant told Officer Mares he found the television remote on the ground where he was detained. Appellant told Officer Mares he was never wearing the hat, it was in his pocket. Officer Mares testified that to his knowledge, the hat was never in appellants pocket.
Fresno Police Officer Daniel Gomez dusted the apartment for fingerprints, but he was unable to recover any. Officer Gomez determined the point of entry was the bathroom window.
DISCUSSION
A. Exclusion of Evidence of Prados Probation Status
Appellant contends the trial court committed prejudicial error when it excluded evidence that Prado was on felony probation, and in violation of that probation, at the time of the burglary. Appellant argues that such evidence was relevant to show that Prado may have quickly identified appellant as the burglar, without regard to whether the identification was correct, so he could get away from the police and avoid arrest for violating his probation. Respondent contends that this evidence was properly excluded because the inferences to be drawn from the evidence were purely speculative. We agree with respondent.
1. Trial Proceedings
During a hearing on in limine motions held prior to jury selection, the trial court ruled that witness Prado could be impeached with his prior felony conviction for violation of section 273.5, willful infliction of corporal injury on a spouse or cohabitant. Defense counsel then raised a "related issue," which he explained as follows:
Prado was impeached with his prior felony conviction at trial when the prosecution asked Prado at the outset of his testimony whether it was true he had been convicted of felony spousal abuse in the year 2000; Prado responded, "Yes."
"Based on the testimony and information we have, Mr. Prado either gave or the officer misunderstood the name Mr. Prado gave him. I believe the evidence was Mr. Prado gave a false name to the police officer. And the reason that he gave a false name was that he was on a felony probation and ... there was a restraining order as a result of that felony probation which prevented him from being in that residence and certainly near the young lady that was there and that he gave the false name intentionally so he would not be arrested, if you will, for being in violation of not only his probation but also the restraining order.
"As I think the evidence will show, we went through the first trial and we all read the police reports, [the prosecutor] and myself, that shortly after the incident here Mr. Prado was taken up to view the suspect that was in custody and he made an identification of that suspect. And it would be my view that ... the reason that he gave a false name would be irrelevant [sic] to the issue of the identification, because he ... wants to make a quick identification of this person and get out of the back seat of that police car ... [P] ... [P] These reasons will be important for the jury to hear and are relevant on the issue of identification, that he wanted to get out of that police car as quickly as he could, so that anybody that was standing in a position with the suspect according to the evidence is going to come out as [appellant], that is relevant to the identification issue."
The attorneys and the court then discussed the evidence regarding whether Prado actually gave a false name to Officer Mares. The court stated that it did not have a problem with asking Officer Mares and Prado about what name Prado gave the officer, but it did "have a problem with this underlying explanation, this underlying rationale you espouse for why he did give the name." Defense counsel explained that he would ask Prado " Isnt it true, Mr. Prado, you gave a false name because there was a restraining order against you preventing you from being in that house?" The court responded that was based on defense counsels "individual speculation" and nothing else. Defense counsel replied it was not speculation because Prado was on felony probation, and part of the probation was a restraining order that was in effect on the date of the burglary. The court stated:
"Well, let me analyze it this way. To the extent that it has probative value, I feel bringing up collateral issues with respect to the victim, in my opinion, collateral issues are more prejudicial than probative on the issue of impeachment, because hes being impeached on giving a false name, which is misdemeanor conduct. And thats what hes being allowed—the Court is allowing you to impeach him on. The rest of that, to me, if it has any probative value, is substantially outweighed by the prejudicial effect and also brings up a collateral issue I think is based on your speculation in tying probation, a restraining order, to giving a false name, which I just dont agree with."
The court stated the ruling was tentative, and if during the course of the trial "you can produce some more persuasive authority that that link is there, [the] Court would reconsider it." Defense counsel, however, never requested the court to revisit the tentative ruling during trial.
2. Standard of Review
"Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 201, 926 P.2d 365.) This standard of review is applicable both to a trial courts determination of the relevance of evidence as well as to its determination under Evidence Code section 352 of whether the evidences probative value is substantially outweighed by its prejudicial effect. (People v. DeJesus (1995) 38 Cal.App.4th 1, 32 ["The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. (Citations.) That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. (Citations.)"]; People v. Cudjo (1993) 6 Cal.4th 585, 609, 863 P.2d 635 [a trial courts ruling on Evid. Code, § 352 is reviewed for abuse of discretion].) The trial courts "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." (People v. DeJesus, supra, at p. 32.)
"Relevant evidence means evidence, including evidence relevant to the credibility of a witness ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 681, 248 Cal. Rptr. 69, 755 P.2d 253.)
3. Exclusion of Evidence
Appellant claims that the fact that Prado was in violation of the terms of his probation explains why Prado gave Officer Mares a false name, which leads to an inference that Prado did not make an accurate identification of appellant as the burglar because he wanted to get out of the officers presence before the officer discovered he was in violation of the terms of his probation. For these reasons, appellant contends evidence that Prado had violated his probation was relevant and admissible.
To ask the jury to conclude that because Prado was in violation of the terms of his probation he necessarily provided a false name and an inaccurate identification of appellant as the burglar is asking the jury to engage in pure speculation. It is highly unlikely Prado was concerned about his probation status, given that he was the one who told Flores to call the police in the first place. If he had truly been concerned about being in violation of probation, he would not have had Flores report the burglary. Moreover, as respondent points out, there was no evidence that Prados identification of appellant was rushed or that Prado was in a hurry to identify him. In fact, Prado testified that when he was first asked to identify appellant, appellant was not wearing a hat, and when Prado mentioned the hat to the officers, he waited until they found the hat and placed it on appellant before identifying him as the burglar. This testimony alone shows that Prado was not in a hurry to identify appellant as the burglar. In addition, there is absolutely no evidence in the record, and appellants trial counsel made no offer of proof, that Prado actually knew he had violated the terms of his probation. Because evidence which produces only speculative inferences is irrelevant evidence (People v. Babbitt, supra, 45 Cal.3d at p. 682), we find that the trial court did not err when it excluded testimony concerning Prados probation status under Evidence Code section 352.
Contrary to appellants assertion, the evidence was not of such probative strength that it violated his constitutional right to present a defense. It is well established that the erroneous exercise of discretion does not implicate the United States Constitution. "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain ... a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice ...." (People v. Cudjo, supra, 6 Cal.4th at p. 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835, 226 Cal. Rptr. 112, 718 P.2d 99; see also People v. Hawthorne (1992) 4 Cal.4th 43, 58, 841 P.2d 118.) Even when a trial court misapplies Evidence Code section 352 to exclude admissible defense evidence, "the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ... (error harmless if it does not appear reasonably probable verdict was affected)." (People v. Cudjo , supra, at p. 611.)
Since the inferences appellant was trying to glean from the evidence that Prado was in violation of the terms of his probation were speculative, we find that the trial court did not abuse its discretion in excluding such evidence.
B. Flight Instruction
Appellant claims that the trial court erroneously gave the following modified CALJIC No. 2.52 "flight" instruction, to which appellant objected in the trial court: "The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a Defendant is guilty or not guilty. [P] Whether or not evidence of flight shows a consciousness of guilt and the significance to be attached to such a circumstance are matters for your determination."
Appellant argues that it was improper to give this instruction because the identity of the perpetrator was in dispute. Appellant concedes, as he must, that it is not error to give the instruction solely because the identity of the perpetrator is in dispute. (People v. Mason (1991) 52 Cal.3d 909, 942-943, 277 Cal. Rptr. 166, 802 P.2d 950.) Instead, appellant contends that it is error to give the instruction where identity is in dispute and there is no "independent identification evidence showing that the defendant fled the crime scene." Appellant reasons that because there was no clear identification of appellant as being the person who fled from Floress apartment, since Prado and Flores did not know who the burglar was and Officer Mares did not see appellant coming out of the apartment, the instruction should not have been given.
There is no requirement, however, that flight evidence be limited to flight from the actual crime scene, in this case Floress apartment. Section 1127c requires the trial court to give a flight instruction "where evidence of flight of a defendant is relied upon as tending to show guilt." As our Supreme Court explained in People v. Mason, in which the court held that a flight instruction was properly given even though the defendants flight took place four weeks after the murder, "our decisions [do not] create inflexible rules about the required proximity between crime and flight. Instead, the facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt." (People v. Mason, supra, 52 Cal.3d at p. 941.) Thus, "if there is evidence identifying the person who fled as the defendant, and if such evidence is relied upon as tending to show guilt, then it is proper to instruct on flight. ( § 1127c.)" (Id. at p. 943.)
Here, there were two types of flight evidence: (1) the eyewitness evidence which described the burglars presence in, and his flight from, the apartment; and (2) evidence that Officer Mares saw appellant running in the same direction as the burglar and apprehended him, with much resistance from appellant, a few blocks from the apartment within minutes after the burglary. With respect to the first type of evidence, the identity of the burglar was in dispute. With respect to the second type of evidence, however, there was no dispute regarding identity. Even assuming the instruction was improper with respect to the first type of evidence, the instruction was certainly proper as to the second type of evidence, since it was shown appellant was the person who engaged in this activity. (People v. Simon (1989) 208 Cal. App. 3d 841, 851-852, 256 Cal. Rptr. 373; see also People v. Kelley (1990) 220 Cal. App. 3d 1358, 1376-1377, 269 Cal. Rptr. 900.)
As the court explained in People v. Simon:
"Since this activity may be interpreted as demonstrating a consciousness of guilt it is evidence relevant to identifying appellant as the perpetrator of the charged crimes. Precisely because identity (of the perpetrator of the charged crimes) was in issue, this flight evidence (where the identity of the fleer was not in issue or at least not congruent with the flight from the scene evidence) was admissible and properly considered by the jury. The courts instruction merely guided that consideration. The guidelines rather than prejudicing appellant were protective of him." (People v. Simon, supra, 208 Cal. App. 3d at p. 852.)
The same is true in this case. The jurors were instructed that evidence of flight was not alone sufficient to establish guilt, and could be considered by them only if proved, and even then the significance was for them to determine. For these reasons, the flight instruction was properly given.
DISPOSITION
The judgment is affirmed.
We concur: DIBIASO, Acting P.J., VARTABEDIAN, J.