Opinion
H035520
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE JOSEPH RUBY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC957960)
Defendant Jesse Joseph Ruby was convicted by a jury of two counts of attempted robbery arising out of an October 2009 incident outside of a 7-Eleven convenience store in south San Jose. He thereafter admitted the allegation that he had suffered a prior felony conviction for which he had served a prison term. The court sentenced defendant to a term of three years in prison.
On appeal, defendant contends that the court erred in excluding evidence that each of the two victims had previously been convicted of misdemeanor drunk driving and had received probation as a result of those convictions. We conclude that there was no error and will affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
On the evening of October 10, 2009, Jose Diaz and his friend, Jose Salas Sanchez, drove to a 7-Eleven convenience store on White Road in San Jose to buy beer. They purchased a total of four 18-packs of Bud Lite. They left the store, each carrying two packs, and walked to Diaz's Pontiac that was parked in front of the store. One of them placed two of the packs on the hood of the car. Diaz and Salas Sanchez were on the passenger side of the car with two of the packs of beer on the ground between them. As Diaz tried to open the car door, he saw one man, defendant, bend down to try to grab the beer. Immediately afterward, a second man, Luis Miranda, punched Diaz in the right eye. Diaz lost sight for a few seconds, almost fell down, and was in pain. Diaz ran to the front of the car.
According to Salas Sanchez, one of the two men was yelling something in English when they approached from behind. Defendant raised his fists up as if he were about to fight Salas Sanchez, who then hit defendant in the face. Defendant fell over. Both defendant and Miranda followed Salas Sanchez, who ran toward a truck parked nearby, and then the police arrived. The policeman ordered Miranda, defendant, and Salas Sanchez to get on the ground, and Salas Sanchez complied.
San Jose Police Officer Michael Santos arrived at the 7-Eleven at about 10:30 that evening while on a routine patrol in his marked police car. As he pulled into the parking lot, he observed a male (defendant) between a black Pontiac and a truck who was in the process of falling to the ground toward the parking lot. Officer Santos observed beer on the ground between the Pontiac and the truck. As defendant fell down, the officer saw loose beer cans flying through the air in the same area. Officer Santos got out of his patrol car and reported the incident to dispatch at 10:31 p.m. to ask for backup assistance. He believed that a fight was taking place, so he attempted to detain the people involved. Officer Santos instructed the three men that he saw at the time to get on the ground. Salas Sanchez and defendant complied; Miranda did not. Other police officers arrived shortly afterward and handcuffed Miranda, as well as defendant and Salas Sanchez. In the process of conducting the investigation, Officer Santos saw Diaz, who was standing at the front of the Pontiac holding a can of soda or beer on his eye, which was swollen. It appeared to the officer that Diaz was afraid. From his interviews at the scene, Officer Santos formed the opinion that both defendant and Miranda had been drinking. The officer also had concluded that Salas Sanchez "had some indications of alcohol."
II. Defense Evidence
Francisco Vasquez, defendant's friend and neighbor, testified that he and defendant had walked from Vasquez's home to the 7-Eleven on the evening of October 10, 2009, to buy beer. Vasquez went inside the store but defendant remained outside. As Vasquez was at the cash register buying beer, he saw a couple of people standing outside, and saw defendant on the ground with Miranda trying to help him up. A police officer arrived, and Vasquez, after waiting inside for a while, walked home by himself. He was afraid he might get interrogated by the police for public intoxication.
Defendant testified that on October 10, 2009, he had been drinking from late in the afternoon onward. In the evening, he walked with Vasquez to the nearby 7-Eleven to buy beer. Vasquez went inside the store to buy beer; defendant remained outside and was texting someone. Defendant saw Miranda, his brother-in-law. Defendant then saw two men (whom he had never met) come out of the store carrying beer, and he asked them if they had a cigarette. Diaz gave a look out of the corner of his eye, "didn't really acknowledge [defendant], and that kind of pissed [him] off." Defendant then walked up to Diaz and punched him. Defendant never bent over to try to grab any beer on the ground. After he struck Diaz, defendant was punched, fell to the pavement, and hit his head. Miranda bent down and asked defendant if he was all right. Officer Santos then arrived and told everyone to get down on the ground.
Defendant admitted that he had been convicted in 2006 of a felony involving moral turpitude.
Although defendant testified that he did not go inside the store and did not buy beer, he admitted that he had told the police that evening that he had gone inside the store and had bought beer. He explained the discrepancy as being due to the dizziness he was experiencing from being struck in the face and striking his head on the pavement.
There was a stipulation that a sample of defendant's blood was drawn at 2:20 a.m. on October 11, 2009 (about four hours after the incident), and that the result of a criminalist's test of that sample was that it contained a blood alcohol concentration of .18 percent.
PROCEDURAL BACKGROUND
Defendant, along with codefendant Miranda, was charged by information filed January 21, 2010, with two counts of attempted robbery in the second degree (Pen. Code, §§ 211-212.5, subd. (c)). It was also alleged that defendant had suffered a prior felony conviction for which he had served a prison term (§ 667.5, subd. (b)). After a trial by jury, defendant was convicted on March 24, 2010, of two counts of attempted robbery. Defendant waived his right to a trial of the prison prior and admitted the allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
The court sentenced defendant to a midterm of two years in prison on the count 1 conviction and a concurrent two-year prison term for the count 2 conviction; defendant received a consecutive one-year prison sentence for the prison prior for a total prison term of three years. Defendant filed a timely notice of appeal.
Codefendant Miranda was also convicted of two counts of attempted robbery and thereafter admitted various special allegations. Any judgment entered on Miranda's convictions is not a subject of the instant appeal.
DISCUSSION
I. Exclusion of Evidence of Victims' Misdemeanor Convictions
A. Background and Contentions
Defendant's sole claim of error concerns the propriety of the trial court's order excluding evidence that both Diaz and Salas Sanchez had previously been convicted of misdemeanor drunk driving offenses and had received probation.
In his opening brief, defendant also challenged the court's imposition of a criminal justice administration fee, arguing that it was not based upon a court finding of defendant's ability to pay the fee. After considering the Attorney General's position, defendant elected to abandon this claim of error.
The People brought a motion in limine to exclude Diaz's October 7, 2009 convictions of driving under the influence (Veh. Code, § 23152, subd. (b)), and driving without a valid license (Veh. Code, § 12500, subd. (a)), for which he received court probation. They also moved in limine to exclude Salas Sanchez's October 22, 2008 convictions of the same offenses, for which he also received court probation. The People argued that the misdemeanor convictions were not relevant and, even assuming the evidence had any probative value at all, it was excludable under Evidence Code section 352. The motion was heard by the trial court before the jury was impaneled, and was opposed by defendant and his codefendant. Miranda's counsel argued that, based upon Salas Sanchez's testimony at the preliminary hearing that he had been afraid at the time that he would be arrested, and because of his probation status, he had a motive to lie to the police by accusing defendant and Miranda. Defendant's counsel joined in the argument. The court granted the People's motion, stating: "The People's request to preclude the use of the prior convictions of Mr. Diaz and Mr. [Salas] Sanchez is granted without prejudice. The defense will be allowed to renew their request to impeach Mr. Diaz and Mr. [Salas] Sanchez with those prior convictions should this information become relevant at trial."
Defendant contends that evidence of the victims' prior misdemeanor convictions was relevant on the issue of credibility; the ruling could not be supported under Evidence Code section 352 because the court did not base its ruling on that ground; the error was prejudicial; and the exclusion of evidence resulted in a violation of his federal constitutional rights in that he was deprived of a meaningful opportunity to present a complete defense and was denied his confrontation rights. Lastly, defendant argues that in the event it is determined that he did not adequately preserve the issues for appeal, such failure by trial counsel constituted a denial of his right to effective assistance of counsel.
B. Preservation of Claim for Appeal
The Attorney General argues that the claim of error is not properly before this court because defendant "received only a provisional ruling" from the court and therefore did not preserve the claim. The Attorney General contends that defendant's failure to make an offer of the evidence at trial was similar to circumstances where a party fails to press for a ruling by the trial court and thus does not preserve the claim of error. We disagree.
First, the claim that the issue was not preserved for appeal because only a "provisional ruling" was obtained is without merit. The court did rule on the motion to exclude evidence of the victims' prior misdemeanor convictions. The fact that it did so "without prejudice" does not of itself suggest that defendant was required to pursue a further ruling from the trial court. We read the court's ruling as simply having left open the possibility of defendant's (or his codefendant's) renewing at trial a request to introduce the evidence concerning the victims' prior convictions. Such a possibility is certainly contemplated when a court makes a ruling on an in limine motion before witnesses have been sworn. (See People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 (Jennings) [generally, when party seeking exclusion of evidence is unsuccessful at in limine stage, he or she should renew objection when evidence is actually offered at trial]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1174 [in limine "ruling is necessarily tentative because the court retains discretion to make a different ruling as the evidence unfolds"].)
Second, while in many instances after an in limine ruling, a party must renew at trial an objection to the introduction of evidence (or in this case, renew a proffer for the admission of evidence) to avoid forfeiture of the appellate claim, this is not always the case. The Supreme Court has summarized the rule as follows: "The general rule is that 'when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal' [citation], although a sufficiently definite and express ruling on a motion in limine may also serve to preserve a claim [citation]." (People v. Brown (2003) 31 Cal.4th 518, 547.) In People v. Morris (1991) 53 Cal.3d 152, 190 (Morris) (disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), the court held that "a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal."
Here, we are concerned with a challenge to a ruling excluding evidence, thereby triggering Evidence Code section 354, rather than its counterpart, Evidence Code section 353, addressing claimed error in the admission of evidence. We believe the principles enunciated in Morris, supra, 53 Cal.3d at page 190, are equally applicable where there is an in limine ruling excluding evidence. Where the proponent of the evidence failed to renew the proffer of evidence after the in limine ruling, in order to avoid a forfeiture of the claim, the proponent must show that (1) he or she advanced the ground for admitting the evidence at trial and subsequently raised it on appeal, (2) the in limine proceedings demonstrated to the court "[t]he substance, purpose, and relevance of the excluded evidence" (Evid. Code, § 354), and (3) "the motion [was] made at a time before or during trial when the trial judge [could] determine the evidentiary question in its appropriate context." (Morris, at p. 190.)
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." (Evid. Code, § 354.)
In this instance, defendant preserved the claim of error based upon the trial court's exclusion of evidence. Defendant (through adoption of codefendant's position) argued in opposition to the People's motion that the prior conviction evidence was relevant to attack the victims' veracity. The nature of the proffered evidence was clearly defined in the in limine proceedings. Further, the underlying facts concerning the crimes alleged and the nature of the proposed testimony of the victims were straightforward, so that the court could understand the context of the evidentiary question raised when it heard the in limine motion. We therefore conclude—although the more prudent practice would have been for the defendant to have renewed the evidentiary proffer at the time the victims testified (see Jennings, supra, 46 Cal.3d at p. 975, fn. 3)—that defendant did not forfeit the claim of error. (See Caira v. Offner (2005) 126 Cal.App.4th 12, 31 [no forfeiture of appellate claim that court erred in excluding e-mail evidence, notwithstanding failure to renew proffer, where " 'substance, purpose, and relevance' of the e-mail was made known to the trial court before it excluded the evidence"].)
Because we find the claim was preserved, we need not address defendant's ineffective assistance argument.
C. Propriety of Ruling Excluding Evidence
1. Standard of review
Only evidence that is relevant is admissible. (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, 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.) "Accordingly, a 'witness may not be examined on matters that are irrelevant to the issue in the case.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 640.)
"The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court's rulings on the admissibility of evidence. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 337.) Although the court " 'has broad discretion in determining the relevance of evidence [citations] . . . , [it] lacks discretion to admit irrelevant evidence.' [Citations.]" (People v. Riggs (2008) 44 Cal.4th 248, 289.) "Trial judges retain 'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' [Citations.] A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
2. Admissibility of misdemeanors and probation status
Defendant urges that evidence of the prior misdemeanor drunk driving convictions suffered by Diaz and Salas Sanchez, as well as their consequent probation status, was relevant and admissible and the court erred in excluding this impeachment evidence. This claim is without merit.
Before the California voters adopted Proposition 8, which included the so-called "Truth in Evidence" amendment to the Constitution (Cal. Const., art. I, § 28, subd. (d)), it was impermissible under the Evidence Code to impeach a witness with prior acts of criminal conduct other than those resulting in felony convictions. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522.) The Supreme Court held that, as a result of the passage of Proposition 8, "if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence under [California Constitution, article I,] section 28(d)." (People v. Wheeler (1992) 4 Cal.4th 284, 295.) Misconduct, including that resulting in a misdemeanor conviction, that involves moral turpitude, "may suggest a willingness to lie [citations]" (id. at p. 295) and is thus admissible, subject to the court's discretion to exclude it under Evidence Code section 352. (Wheeler, at pp. 295-296.) The threshold inquiry is whether the prior conduct bears on the witness's veracity, and this in turn is determined by "whether the least adjudicated elements of the offense constitute a crime of moral turpitude. [Citation.]" (People v. Chavez (2000) 84 Cal.App.4th 25, 28 (Chavez).)
The Supreme Court, in People v. Castro (1985) 38 Cal.3d 301, 315 (Castro),"divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a ' "general readiness to do evil," ' from which a readiness to lie can be inferred. [Citation.] Crimes in the latter group are acts of 'baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' [Citation.]" (Chavez, supra, 84 Cal.App.4th at pp. 28-29.)
As the Supreme Court has held in the context of attorney disciplinary proceedings, a drunk driving conviction is not one that, of itself, is a crime of moral turpitude. (In re Kelley (1990) 52 Cal.3d 487, 494; In re Carr (1988) 46 Cal.3d 1089, 1090-1091.) Although courts have held that "attorney disciplinary cases are not determinative on the issue of moral turpitude for purposes of a Castro analysis [citations]" (People v. Forster (1994) 29 Cal.App.4th 1746, 1757; People v. Armendariz (1985) 174 Cal.App.3d 674, 682), there is no authority supporting the view that a misdemeanor drunk driving conviction involves moral turpitude. (But see People v. Forster, at pp. 1755-1758 [felony drunk driving with three prior convictions is crime of moral turpitude for purposes of impeachment].) The offense of drunk driving does not contain an element of dishonesty. Nor does it "indicate a ' "general readiness to do evil," ' from which a readiness to lie can be inferred. [Citation.]" (Chavez, supra, 84 Cal.App.4th at p. 28.) It is therefore not a crime that falls within either group of crimes that involve moral turpitude. (Castro, supra, 38 Cal.3d at p. 315; cf. id. at p. 317 [crime of simply possessing heroin does not involve moral turpitude].) The victims' prior convictions for misdemeanor offenses not involving moral turpitude were inadmissible.
Defendant's contention that he was entitled to introduce evidence that the victims were on court-supervised probation is likewise without merit. If evidence that Diaz and Salas Sanchez had each suffered prior misdemeanor drunk driving convictions was irrelevant, it naturally follows that evidence that each of them received probation for such convictions is irrelevant. Contrary to defendant's assertion that the probation status of the victims was relevant to show that they had a motive to lie to the police about what had transpired outside of the 7-Eleven, we believe that this proposed evidence was little more than thinly disguised propensity evidence suggestive to the trier of fact that the victims were not trustworthy because they had been previously convicted of unspecified crimes for which they received probation. As such, it was inadmissible under Evidence Code section 1101, subdivision (a). (See People v. Morgan (1978) 87 Cal.App.3d 59, 66-67 [parole status generally constitutes inadmissible propensity evidence], disapproved on another point in People v. Kimble (1988) 44 Cal.3d 480, 496.)
We therefore conclude that the trial court correctly excluded evidence of the victims' prior misdemeanor drunk driving convictions and consequent probation status.
Because we find the proffered evidence was not relevant and was thus properly excluded, we need not address defendant's remaining arguments, namely, that (1) the evidence should not have been excluded under Evidence Code section 352, (2) defendant was prejudiced as a result of the court's evidentiary ruling, and (3) exclusion of the evidence violated defendant's constitutional right to confront witnesses and present a meaningful defense.
DISPOSITION
The judgment is affirmed.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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WE CONCUR:
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Premo, Acting, P.J.
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Bamattre-Manoukian, J.