Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA 051226, Darlene E. Schemp, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant appeals his conviction of two counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He contends the trial court erred in denying a pinpoint instruction on the unavailable accuser’s failure to appear at trial, and excluding evidence that a key witness had a pending marijuana possession case. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant was charged in a four-count information with two counts of second degree robbery (Pen. Code, § 211, 664) and two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
On January 10, 2006, shortly after midnight, April Yurek and her boyfriend Roman Wachter went to a Taco Bell at the intersection of Lankershim and Oxnard in North Hollywood. After parking their car in the Taco Bell lot, they walked up to the window to place their order. Yurek could see defendant arguing with a woman inside the Taco Bell, and defendant turned to them and demanded that she and Wachter buy him a chalupa. Yurek refused. Defendant was angry, came close to them, told them to buy him a chalupa, or he was going to “fuck them up.” Defendant did not ask for money, but he said, “Don’t you know who I am?” and gave what Yurek understood was some kind of gang affiliation. Defendant’s speech was slurred, and he was stumbling. He continued to follow them around, continued to tell them he was going to fuck them up, and told them to leave.
Yurek went to the order window and got the phone from the woman inside the Taco Bell and called 911. At this time, Wachter had gone outside by the tables, where defendant continued to follow him. She heard Wachter call her name, saw defendant grab a bottle, break it, and lunge at her with a broken part of the bottle. Defendant got very close and she was afraid he was going to stab her with it, so she ran away from him. Defendant followed them to their car, and prevented Wachter from getting into the car. The police arrived shortly. Yurek told them what had happened, and identified defendant.
Officer Brian Murphy responded to a call at the Taco Bell about 12:15 a.m. He saw that defendant had already been arrested, and gave defendant his Miranda warnings. Defendant told him that he “was just hungry, [and I] didn’t hurt anybody. I just wanted some money so I could buy some food.” Officer Murphy noticed the smell of alcohol on defendant’s breath.
Roman Wachter did not appear at trial to testify, and pursuant to stipulation, his testimony from the preliminary hearing was read into the record.
The jury found defendant not guilty on Counts 1 and 2 (attempted second degree robbery), and guilty on Counts 3 and 4 (assault with a deadly weapon).
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN REFUSING TO GIVE A PINPOINT INSTRUCTION ON WACHTER’S ABSENCE FROM TRIAL.
Defendant contends that the trial court erred in refusing to give a pinpoint instruction on Wachter’s absence from trial, and as a result violated his right to present a meaningful defense.
A. Factual Background.
During instruction to the jury, defendant requested the court give the following pinpoint instruction on Wachter’s absence from trial: “Roman Wachter, the complaining witness in this offense was ordered to return to court and did not do so. You, as the sole judges of the believability of a witness, may consider Mr. Wachter’s failure to appear and give it whatever weight it deserves.”
Defense counsel argued that it was not the situation where the witness was out of the jurisdiction or had died, but rather the witness was refusing to appear. Watcher had failed to return phone calls. Under CALJIC No. 2.20, defendant argued jurors could consider a witness’s attitude towards testimony, and Wachter’s conduct demonstrated he was contemptuous of court and failing to follow its orders, which was relevant to his credibility.
The court responded, “I don’t know that he has voluntarily absented himself. No one knows. He could be lying in a hospital. The jurors are not to speculate why he wasn’t here. His testimony was read into the record, and I have sympathy for victims who have to keep coming to court. He testified at the prelim[inary hearing]. He was ordered back, the young man. Who knows. He might have been told, you miss one more day of work, you are being docked. But they end up being a victim twice when they have to keep coming back.” Defense counsel responded that the court was assuming Wachter was a victim, and that “I think the fact that he is choosing not to participate in the proceedings does raise some issues as to whether or not these allegations are correct or true.”
During argument to the jury, defense counsel commented on Wachter’s absence, and told the jury, “you have no opportunity to see him, what the inflection is in his voice, what his body language is and so, basically, you are just getting words. And it is really hard to analyze and to evaluate the veracity and credibility of just words if you can’t see what the person looks like or what they are doing as they testify.” The jury was instructed with CALJIC No. 2.20 (believability of witness), which provided in part that “In determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to. . . . [¶] The attitude of the witness toward this action or toward the giving of testimony.”
B. Pinpoint Instruction.
Upon request, the trial court must give jury instructions that pinpoint a theory of the defense, but it may refuse instructions that “highlight specific evidence as such.” (People v. Wright (1988) 45 Cal.3d 1126, 1137.) This latter type of instruction invites the jury to draw an inference favorable to one of the parties from the highlighted evidence, and is therefore considered argumentative. (People v. Earp (1999) 20 Cal.4th 826, 886.) Further, the trial court need not give a pinpoint instruction if it merely duplicates other instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction standing alone. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Here, defendant sought to highlight the witness’s failure to appear and testify in order to question the witness’s motivation and hence his credibility. The proffered instruction therefore did not pertain to the theory of defense, but rather to the analysis of certain evidence. Furthermore, as the court’s discussion points out, the witness’s failure to appear could support many different inferences, not just the inference defendant proposed; therefore the instruction would favor his view of the evidence with the result it was argumentative. In any event, the jury instructions given and defendant’s counsel’s argument establish that the question of Wachter’s credibility was adequately covered by the existing instructions and the requested pinpoint instruction would have been duplicative.
II. THE TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE OF YUREK’S CITATION FOR MARIJUANA POSSESSION.
Defendant contends the trial court violated his right to confront and cross-examine witnesses by excluding Yurek’s testimony that she had received a citation for marijuana possession and that she failed to appear in connection with that citation. He contends evidence of pending convictions is proper impeachment evidence and that the proffered testimony would have tended to undermine her credibility (her failure to appear) and to establish bias (potential lenient treatment from the prosecution due to an open matter).
A. Factual Background.
During cross-examination of Yurek, the defense asked Yurek if she had received a citation in Malibu for possession of marijuana. Yurek admitted she had received a citation, and that she failed to appear. The court granted the prosecution’s motion to strike this testimony. Defense counsel argued the citation was relevant, the witness signed a promise to appear but failed to appear, and her failure to appear was relevant to her credibility. Further, the defense argued that the fact her possession case was an open case affected her motive to testify. The court stated it was not going to allow the evidence because it was not a conviction, but a citation that at most carried a fine. The court admonished the jury to ignore Yurek’s testimony on the citation.
B. Discussion.
The Confrontation Clause requires that a criminal defendant be able to engage in cross-examination to establish bias on the part of the witness. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) Nonetheless, “not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v. Chatman (2006) 38 Cal.4th 344, 372.) Unless defendant can establish that the prohibited cross-examination would have produce “a significantly different impression of [the witness’s] credibility,” the trial court’s exercise of discretion to exclude the evidence does not violate the Sixth Amendment. (Van Arsdall, supra, 475 U.S. at p. 680; People v. Chatman, supra, 38 Cal.4th at p. 372.)
Here, the trial court’s ruling indicates it believed the evidence had marginal relevance. Although defendant is correct that pending charges may be appropriate impeachment evidence if they show that the witness may be seeking leniency by testifying (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081), there was no basis to infer such a result here. Moreover, the primary focus of the proposed impeachment evidence was Yurek’s failure to appear. In making its ruling, the court noted the failure to appear on a citation was a common occurrence. Thus, as impeachment evidence, Yurek’s failure to appear was minimally relevant to credibility and the court was within its discretion to exclude it without violating defendant’s Confrontation Clause rights. Lastly, Yurek’s appearance at trial to testify undercuts any argument that her credibility could be questioned on that basis.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J. WOODS, J.