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People v. Solomon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 4, 2012
B225381 (Cal. Ct. App. Jan. 4, 2012)

Opinion

B225381

01-04-2012

THE PEOPLE, Plaintiff and Respondent, v. JACK SOLOMON, Defendant and Appellant.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA347789)

APPEAL from a judgment of the Superior Court for Los Angeles County, Monica Bachner, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jack Solomon appeals from a judgment sentencing him to prison for five years after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found that he personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)). He contends he was deprived of his right to a fair trial when the trial court excluded evidence of the victim's 40-year-old convictions for assault and armed robbery, which defendant argues were relevant to his assertion of self-defense. He also asks us to review the sealed transcript of the in camera hearing on his Pitchess motion to determine whether the trial court's determination regarding discoverable materials was correct. We affirm the judgment.

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

BACKGROUND

On September 24, 2008, defendant and Robert Womack were living in transitional housing for the homeless. The two men, who were in their early sixties, were best friends. They had been drinking that day, and both were intoxicated by 4:30 that afternoon. At around 4:30 or 4:45, Womack was in the front common room of the house, watching television with several other residents, when defendant came into the room and said he wanted to change the channel. Defendant was mad, and started cursing at everyone. Womack tried to stop defendant, and told him he needed to go lay down. Defendant said, "You going to make me lay down, motherfucker?" It was clear to Womack that defendant was drunk, but Womack thought he could talk to him and calm him down, so he stood in front of him and told him again that he needed to lay down. Defendant pulled a knife out of his pocket and hit Womack on the left shoulder, knocking him down. Defendant then held Womack down and stabbed him in the stomach. One of the other residents pulled defendant off of Womack. Defendant put the knife back into his pocket and ran out. Police officers found defendant a short time later, sitting in a nearby parking lot and drinking a beer. They found a small pair of scissors and a small folding knife in his possession. They did not see any blood on the knife or scissors.

When Womack's blood was tested later that day, he had a blood alcohol level of .298, almost four times the legal limit to drive.

Womack was taken by ambulance to the hospital, where doctors did an exploratory laparotomy to determine if he had internal injuries. The results were negative. At the time of trial, Womack had a six-inch scar from the bottom of his sternum to just above his navel, a result of the surgery, and a one-inch scar directly to the right of that and a scar on his left shoulder from the stabbing.

Defendant was charged by information with one count of attempted murder (Pen. Code, § 664/187, subd. (a)) and personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)).

Before trial, defendant filed a Pitchess motion, seeking discovery of materials related to the police officers who interviewed Womack at the hospital and arrested defendant. The trial court granted the motion as to certain categories (materials related to allegations that the officers failed to give Miranda warnings in the past and allegations that they made false reports in the past), and conducted an in camera hearing. The court ordered disclosure of certain materials, which were provided to defendant.

Miranda v. Arizona (1966) 384 U.S. 436.

Also before trial, the prosecutor moved to exclude evidence of Womack's prior convictions for various crimes (including attempted armed robbery and assault) that occurred in 1960 through 1969. Womack had received a nine-year sentence on the 1969 conviction, and had no subsequent convictions. The prosecutor argued that evidence of the convictions should be excluded because they took place 40 years before the incident at issue and there was no intervening conduct, and therefore the convictions were irrelevant. Defense counsel countered that the convictions involved crimes of moral turpitude, so they could be used for impeachment, and that they were evidence of Womack's violent character, which was relevant to defendant's claim of self-defense.

Although the prosecutor stated that Womack had no subsequent convictions, defense counsel indicated that she found Womack had been charged with two misdemeanors, but she did not describe those charges.

The court addressed the prosecutor's motion on three successive days. On the first day, the court noted that it believed it should be more hesitant to exercise its discretion to exclude remote felony convictions of a non-defendant witness that it would to exclude a defendant's remote convictions. But the court declined to rule at that time because it wanted to review the case law.

The next day, the court first focused on the use of the convictions for impeachment. Relying on People v. Clair (1992) 2 Cal.4th 629, the court ruled that the convictions could not be used for impeachment. The court explained that the convictions were extremely remote, with no other intervening conduct, and therefore were "minimally marginally relevant" to show Womack's honesty, veracity, or readiness to do evil, noting that "people change." Balancing their minimal relevance against their "highly prejudicial" effect, the court determined the convictions would be excluded for purposes of impeaching Womack's testimony. The court then turned to their use as character evidence under Evidence Code section 1103, subdivision (a) (hereafter, section 1103(a)), which the court acknowledged required a separate analysis. The court expressed some concern about how defense counsel intended to present the character evidence, and asked for an offer of proof. Once it got that offer of proof, the court said it would conduct an analysis under Evidence Code section 352 (section 352). In doing so, the court acknowledged that character evidence was relevant to defendant's self-defense case.

The following day, defense counsel gave her offer of proof, saying she would simply ask Womack whether he had ever been involved in an armed robbery or an aggravated assault. After hearing argument from both sides, the court concluded that evidence of Womack's convictions would be excluded under section 352 for the reasons it stated the previous day with regard to impeachment: their probative value was far outweighed by their prejudicial effect.

At trial, Womack testified about the stabbing and the events leading up to it. He said that defendant attacked him without warning, and that he never punched or touched defendant, raised a fist to him, or pulled a weapon. On cross-examination, Womack denied that he ever told the landlord of the housing facility that he had been arguing with defendant about a woman, and that he (Womack) was the one who pulled the knife and was stabbed during the struggle for the knife. Defendant later called the landlord, Larry Fammilop, as a witness. Fammilop testified about a conversation he had with Womack about the incident, in which Womack told him that he and defendant were arguing about a woman named Linda. Womack said that defendant got upset when Womack told him to leave Linda alone, and that Womack pulled out a knife to scare defendant. He said they got into a struggle over the knife, during which he got stabbed. A stipulation was read to the jury stating that Fammilop did not say anything about this alleged conversation when he spoke to defendant's investigator seven months after the incident, and that he was never asked about it.

The jury found defendant not guilty of attempted murder, but guilty of assault with a deadly weapon, and found that defendant personally inflicted great bodily injury upon Womack. The trial court sentenced defendant to the low term of two years on the assault count, plus an additional three years on the great bodily injury allegation, for a total of five years in prison. Defendant timely filed a notice of appeal from the judgment.

In his closing argument, the prosecutor asked the jury to find defendant not guilty of attempted murder because, based upon evidence of defendant's level of intoxication, there was reasonable doubt as to whether defendant was sober enough to form an intent to kill.
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DISCUSSION

Defendant argues that the trial court erred by improperly applying the law governing the admissibility of character evidence under section 1103(a) and abused its discretion in finding the evidence was more prejudicial than probative, resulting in a denial of his due process right to present a defense. In addition, he requests that we conduct an independent review of the sealed transcript of the in camera proceeding on his Pitchess motion to determine whether any discoverable material was improperly withheld from him. We address both issues in turn. A. Exclusion of Evidence of Convictions as Character Evidence

"'It has long been recognized that where self-defense is raised in a homicide [or assault] case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.] Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence." (People v. Wright (1985) 39 Cal.3d 576, 587; see also People v. Shoemaker (1982) 135 Cal.App.3d 442, 446.) Here, defense counsel sought to introduce evidence of Womack's violent and/or assaultive character by asking him about specific acts, i.e., his prior convictions for assault and armed robbery.

Defendant contends on appeal that the trial court improperly applied the law when it excluded evidence of Womack's prior convictions, because the court repeatedly indicated that section 1103(a) would not permit counsel to present character evidence by asking him about those convictions. But the court did not exclude the evidence on that basis. Instead, the court specifically based its ruling excluding the evidence on section 352, which is permitted. (People v. Wright, supra, 39 Cal.3d at p. 587 [admission of character evidence under section 1103(a) "is subject to the dictates of Evidence Code section 352"].)

Defendant challenges the court's ruling under section 352 because the court relied upon its section 352 analysis regarding the exclusion of the convictions for impeachment purposes rather than conducting a separate analysis, and failed to consider the evidence's probative value to show that Womack was the aggressor in the incident or to identify the prejudicial effect of the evidence. We find no fault with the trial court's analysis.

In addressing the admissibility of the convictions as character evidence, the court acknowledged that evidence of the aggressive character of the victim was generally admissible. Thus, it is clear that the court considered the probative value of the evidence to show Womack's aggressive or violent character. And it found, as it did when it considered the probative value to show Womack's honesty or readiness to evil in the impeachment context, that the convictions were so old that they had virtually no relevance to Womack's current character. We agree with the trial court's assessment -- without evidence of intervening bad conduct, evidence of a person's bad conduct when he was a teenager or in his early twenties says little, if anything, about his character when he is in his sixties. (See People v. Shoemaker, supra, 135 Cal.App.3d at p. 448, fn. 4 ["At some point in time, we concede, evidence of the victim's character becomes too remote to have any probative value and becomes irrelevant"].) In light of the virtual absence of probative value, it is not surprising that the trial court concluded that the prejudicial effect of the admission of 40-year-old convictions far outweighed any probative value. We find no abuse of discretion in the exclusion of evidence of the convictions. (People v. Thomas (2011) 51 Cal.4th 449, 485 ["'A trial court's exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 "will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice"'"].) B. Review of Pitchess Proceedings

As noted above, the trial court granted an in camera hearing on defendant's Pitchess motion, and ordered the custodian of records to disclose certain materials. On appeal, defendant asks us to conduct an independent review of the sealed transcript of the in camera proceedings to determine whether any discoverable material was improperly withheld from him. (Citing People v. Mooc (2001) 26 Cal.4th 1216.) We have reviewed the moving papers and the sealed transcript of the in camera hearing. We conclude the trial court followed proper procedures and ordered disclosed all discoverable material.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.


Summaries of

People v. Solomon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 4, 2012
B225381 (Cal. Ct. App. Jan. 4, 2012)
Case details for

People v. Solomon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JACK SOLOMON, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 4, 2012

Citations

B225381 (Cal. Ct. App. Jan. 4, 2012)