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People v. Tewksbury

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Mar 13, 2017
C076190 (Cal. Ct. App. Mar. 13, 2017)

Opinion

C076190

03-13-2017

THE PEOPLE, Plaintiff and Respondent, v. JAIME JOSE TEWKSBURY, Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F05846)

Defendant Jaime Jose Tewksbury walked into Armando Marez's bedroom with a handgun as the latter lay in bed and shot him in the chest and abdomen. Defendant was convicted by jury of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and found to have personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). Following a bifurcated hearing, the trial court found defendant was previously convicted of a strike offense within the meaning of the three strikes law (§§ 667, subd. (b)-(i), 1170.12). Defendant was sentenced to serve an aggregate determinate term of 19 years plus a consecutive indeterminate term of 25 years to life in state prison.

Undesignated statutory references are to the Penal Code.

On appeal, defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by preventing him from impeaching his cousin and Marez's girlfriend, Dusti Ramon, who implicated defendant as the shooter during two out-of-court statements to police but claimed at trial not to remember doing so, with a 2004 conviction for possession of marijuana with intent to distribute. We disagree and affirm. As we explain, the trial court did not abuse its discretion in excluding the proposed impeachment evidence under Evidence Code section 352. Nor did the exclusion of this evidence deprive defendant of his constitutional confrontation or due process rights.

FACTS

On a September afternoon in 2012, defendant was visiting his cousin Ramon and her boyfriend Marez at an apartment they shared with their two children. The apartment was the second of three units in a triplex. Ramon's sister and mother lived in the first and third units, respectively. Her sister's apartment also housed three children. That afternoon, defendant drank alcohol with Marez, a man he sometimes jokingly referred to as "pops," and who considered himself a "big brother or fatherly" figure to defendant. At some point, defendant and Marez left together to buy cigarettes. When they returned, defendant had a bloody nose. Marez told Ramon defendant got punched because he "had gotten smart with somebody" and that "it was [defendant's] fault." Defendant asked Ramon for a ride to his brother's house, but she refused and told him he should go to the hospital. Defendant then left the apartment on foot.

Ramon and Marez went about their evening, retiring to their bedroom around 9:00 p.m. About 30 minutes later, while lying in bed, they heard a knock on the front door. Ramon got up to answer the door while Marez remained in bed. The visitors were defendant and his brother Nick. Defendant said he wanted to talk to Marez and went back to the bedroom. Ramon stayed in the living room with Nick, who asked her what happened earlier and indicated he did not believe what defendant had told him about the incident that bloodied his nose. As Ramon related to Nick what Marez had told her, she heard a gunshot and ran back to the bedroom. Defendant was standing in the bedroom with a gun pointed at Marez, who was sitting up on the bed at this point. When Ramon grabbed onto defendant's shirt and yelled, "no," he fired two more shots. One round struck Marez in the chest and another struck him in the abdomen. Defendant and his brother then fled the scene.

Meanwhile, Ramon's mother was next door washing dishes when she heard the gunshots. She then heard what sounded like people running, came outside to investigate, and saw three people running down a pathway next to the apartment, one of whom looked like defendant's other brother, Gilbert. Ramon then came out of her apartment yelling that defendant had shot Marez. Ramon's sister was also home when the shooting occurred. Hearing a loud commotion and her mom screaming, she came outside and saw Marez stumble out of his apartment with blood dripping from his chest. She immediately called 911.

Police and emergency medical personnel arrived a short time later. Marez was taken to University of California at Davis Medical Center, where he was treated for his injuries. As mentioned, Ramon recounted the events described above to an officer who arrived at the scene and to a detective who interviewed her at the hospital. At trial, she denied any memory of making a statement at the hospital, and while she remembered speaking to an officer at the scene, she denied any memory of making the specific statements implicating defendant as the shooter. For his part, Marez claimed he did not know who shot him, both during his testimony at trial and when he was interviewed at the hospital about a week after the shooting, although he became emotional at the hospital when the detective asked him how he felt about defendant.

DISCUSSION

Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by preventing him from impeaching Ramon with a 2004 conviction for possession of marijuana with intent to distribute. He is mistaken.

"In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to: a witness's character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his [or her] attitude toward the action in which he [or she] testifies or toward the giving of testimony; and his [or her] admission of untruthfulness. [Citation.] Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352. [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337; Evid. Code, § 788; Cal. Const., art. I, § 28, subd. (f)(4), as interpreted by People v. Castro (1985) 38 Cal.3d 301, 317.)

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." When, as here, the witness subject to impeachment is not the defendant, the factors a court must consider in exercising its discretion under this provision "prominently include whether the conviction (1) reflects on honesty and (2) is near in time." (People v. Clair (1992) 2 Cal.4th 629, 654.) A prejudicial abuse of discretion will be found only if 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. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Here, the trial court excluded evidence of Ramon's 2004 conviction in New Mexico for possession of marijuana with intent to distribute. According to the offer of proof, Ramon drove another individual's car containing over 90 pounds of marijuana, admitted she agreed to transport the marijuana with that individual because she needed money to pay medical bills and other expenses, and entered a guilty plea on the charge of possession of marijuana with intent to distribute. This was Ramon's only criminal conviction. The trial court excluded the evidence under Evidence Code section 352 based on the remoteness of the prior crime and the fact Ramon pleaded guilty. We cannot conclude the trial court abused its discretion in so ruling. While, as defendant points out, possession of a controlled substance for sale is a crime involving moral turpitude, "the trait involved is not dishonesty but, rather, the intent to corrupt others." (People v. Castro, supra, 38 Cal.3d at p. 317.) Thus, unlike a fraud or theft conviction, the implication of dishonesty is not a direct one. And here, any indirect inference of dishonesty that may arise from the fact Ramon was caught transporting a large quantity of marijuana is substantially lessened by the fact she admitted her involvement in the crime and pleaded guilty.

Moreover, remoteness alone may supply an adequate basis for excluding evidence of a prior conviction. " 'The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.' " (People v. Beagle (1971) 6 Cal.3d 441, 453 (Beagle), abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1190; see also People v. Tamborrino (1989) 215 Cal.App.3d 575, 590 ["If a prior felony conviction has been followed by a legally blameless life, remoteness is important"].) Here, Ramon pleaded guilty to possession of marijuana with intent to distribute in January 2004, nearly 10 years before defendant's trial in this matter. While, as defendant correctly observes, we have previously held a prior offense involving moral turpitude committed 10 years in the past was not too remote to be admissible, we specifically noted that particular witness (the defendant) "had not led a legally blameless life in the interim," having been convicted twice for driving under the influence and once for driving an unregistered vehicle. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1496; see also People v. Wilson (1975) 50 Cal.App.3d 811, 818-819.) In contrast, here, Ramon has led a legally blameless life in the interim, a fact defendant does not dispute.

While Beagle, supra, 6 Cal.3d 441 was also superseded by constitutional amendment (Cal. Const., art. I, § 28, subd. (f)), as our Supreme Court explained in People v. Collins (1986) 42 Cal.3d 378, 391, its discussion of the relevant factors a court should consider in determining whether to exclude evidence of a prior conviction under Evidence Code section 352 remains good law. --------

Nevertheless, relying on People v. Stevenson (1978) 79 Cal.App.3d 976 (Stevenson), defendant faults the trial court for failing to consider the importance of Ramon's out-of-court statements implicating him in the shooting when determining her prior conviction was too remote. Such reliance is misplaced. There, in dicta offered for guidance "in the event of a retrial" (id. at p. 988), the Court of Appeal stated the trial court erred in excluding an 18-year-old grand theft conviction offered by the defendant to impeach the preliminary hearing testimony of a prosecution witness, such prior testimony having been admitted into evidence against the defendant at trial because this witness had died. The court explained the trial court should have "tak[en] into account, in the weighing process necessary under Evidence Code section 352, the fact that the witness was not a defendant in a criminal case being tried before a jury," but rather "a key hearsay declarant[,]" whose "statements [were] admitted against [the] defendant." (Id. at p. 989.) The court concluded: "The right to impeach such declarant is vital for defendant's defense. It was an abuse of discretion, therefore, for the trial court to deny this right by excluding evidence of a felony conviction that related to dishonesty in spite of its relative antiquity." (Ibid.)

Here, unlike Stevenson, supra, 79 Cal.App.3d 976, the record does not suggest the trial court failed to appreciate the difference between impeaching a defendant witness with prior convictions and impeaching a non-defendant witness with such convictions. Also unlike Stevenson, Ramon's prior conviction did not directly suggest she possessed a dishonest character. (Compare People v. Wheeler (1992) 4 Cal.4th 284, 297 [grand theft conviction involves both moral turpitude and dishonesty] with People v. Castro, supra, 38 Cal.3d at p. 317 [possession of controlled substance for sale involves moral turpitude but not dishonesty].) Most importantly, here, Ramon testified at trial and was subject to cross-examination by defendant. Accordingly, Stevenson is inapposite.

Nor did the trial court's restriction of defendant's impeachment of Ramon violate his Sixth Amendment right of confrontation. "The confrontation clause 'guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (People v. Von Villas (1992) 11 Cal.App.4th 175, 229, quoting Delaware v. Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15, 19].) The confrontation clause does not preclude a trial court from imposing "reasonable limits" on cross-examination based on "concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683], italics added.) Here, the trial court's preclusion of inquiry into a remote conviction that did not directly implicate Ramon's character for honesty or veracity and that was followed by nearly a decade of living within the bounds of the law was a reasonable restraint given the marginal relevance of this information. Because defendant was given an opportunity to effectively cross-examine Ramon, his right of confrontation was not violated.

Finally, for similar reasons, we also reject defendant's related assertion his due process rights were violated. While Evidence Code section 352 "must bow to the due process right of a defendant to a fair trial and his [or her] right to present all relevant evidence of significant probative value to his [or her] defense[,] . . . the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599; People v. Reeder (1978) 82 Cal.App.3d 543, 553.) Here, as we have already explained, Ramon's remote conviction did not have significant probative value.

DISPOSITION

The judgment is affirmed.

/s/_________

HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
NICHOLSON, J.


Summaries of

People v. Tewksbury

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Mar 13, 2017
C076190 (Cal. Ct. App. Mar. 13, 2017)
Case details for

People v. Tewksbury

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAIME JOSE TEWKSBURY, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Mar 13, 2017

Citations

C076190 (Cal. Ct. App. Mar. 13, 2017)