Opinion
B227637
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. BRANDON MICHAEL TREVINO, Defendant and Appellant.
Susan Morrow Maxwell, 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, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA061861)
APPEAL from a judgment of the Superior Court of Los Angeles County, Randy Rhodes, Judge. Affirmed.
Susan Morrow Maxwell, 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, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
I. BACKGROUND
A jury found appellant guilty of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1) (count 1) and battery in violation of section 243 - a lesser included offense to that charged in count 2 of the information. On count 1, the court imposed five years in state prison but suspended the execution of that sentence and granted appellant five years of probation with conditions that included he serve 300 days in county jail. The court imposed a concurrent term of 180 days in county jail on count 2.
All statutory references are to the Penal Code unless otherwise indicated.
Appellant contends the trial court erred by excluding photographs the victim in count 1 presented to a detective depicting his injuries. Because the photographs were of injuries from a separate occasion in which the victim had been previously assaulted by someone other than appellant, he maintains the victim's submission of the pictures to the detective suggested the victim attempted to improperly bolster/fabricate evidence against appellant. He also argues the trial court erred by excluding evidence that, when the victim spoke to the police about the prior assault, the victim was willing to provide the name of his assailant even though the victim did not see the person who assaulted him.
With respect to count 2, appellant argues the trial court improperly permitted the prosecutor to cross-examine a defense witness on the subject of appellant's training as a boxer because it was: (a) beyond the scope of direct examination; and (b) inadmissible pursuant to Evidence Code sections 1101, subdivision (a) and 352. Respondent contends the trial court improperly awarded excessive jail conduct credit.
The claims made by both parties are rejected and the judgment is affirmed. Although the trial court applied the wrong statute when ruling on the evidence related to count 1, any error by the court was harmless given (a) the tenuous relevance the evidence had to the defense that appellant never struck the victim, and (b) the testimony from another eyewitness squarely implicating appellant. In addition, evidence that appellant trained as a boxer was properly admitted because it bore on the issue of his ability to inflict great bodily injury. Respondent's position regarding the limitation on conduct credits is not persuasive because the limitation referenced by respondent is not applicable where, as here, a defendant is granted probation.
II. FACTS
A. Prosecution Evidence
1. Count 1 - Assault at the Rendezvous Bar
On November 7, 2008, Mike Kruer and Tessa Barnett were at the Rendezvous Bar with friends. At approximately 1:00 a.m., Kruer and Barnett stepped outside with another friend in order to smoke cigarettes. Appellant and two other men approached Kruer and his two friends. Appellant asked Kruer, "Did you say my name?" Appellant's friends asked, "Did you say Brandon's name?" Kruer asked appellant, "What's your name?" Appellant responded, "Brandon Trevino." Kruer had never met appellant before and told appellant that he did not know who he was.
Appellant persisted, "I could [have] swor[n] I heard you say my name." Kruer reiterated that he did not say appellant's name, did not recognize him and did not know appellant. It appeared as though appellant and his friends were "trying to start problems." When Kruer began to walk away, appellant's two friends started punching him. Kruer fell face first to the ground. As he used his hands to try to push himself up, appellant took four "big running steps" and kicked Kruer in the face. The kick caused a large cut above Kruer's eyebrow.
Appellant's group fled as police sirens sounded. Kruer was driven to the hospital by Barnett. Kruer sustained chipped teeth and his face required 14 stitches. Both Kruer and Barnett identified appellant as the assailant from police photographs.
2. Count 2 - Battery at the Bella Cucina Restaurant
On January 4, 2009, at approximately 12:30 a.m., Sina Waldman, Crystal Edwards and Lindahl Lucas were dancing at a nightclub located inside the Bella Cucina restaurant. Appellant stepped in front of Lucas and began dancing with Edwards. Lucas did not know appellant. Lucas placed his hand on appellant's shoulder and said, "This is my girlfriend, and I'm dancing with her." Appellant's demeanor was not "friendly" but he eventually walked away.
Appellant returned to Lucas in less than one minute. He extended his hand to Lucas and said, "Hey, man, just say I'm cool." The two men exchanged words and appellant squeezed Lucas's hand in what Lucas interpreted as a show of strength. Appellant attempted to punch Lucas with his free hand but Lucas was able to avoid being hit by leaning back. Lucas pushed appellant away. A security guard intervened and, as Lucas was looking over his shoulder at the security guard, appellant hit Lucas in the face with a glass. Blood ran down his face from a wound inflicted by appellant that required 13 stitches.
Lucas told security guards outside the club about appellant's actions. Appellant was taken out of the club. He was spoken to by the security guards and eventually beaten by one of them.
Lucas and Waldman identified appellant as the attacker from police photographs. Waldman was 100 percent certain appellant was the person who struck Lucas. Prior to trial, Lucas told several people, including appellant, that he would either make the case "go away" or request the district attorney to be lenient with appellant as long as appellant paid Lucas's medical expenses and compensated him for pain and suffering.
B. Defense Evidence
1. Count 1 - The Rendezvous Bar
The Rendezvous Bar has video surveillance of its parking lot. The owner of the bar viewed video of the parking lot that may have been taken on the night of the incident. The video showed appellant leaving the bar and standing in front of the building with friends. The scene appeared "friendly" and there was no indication of a fight.
At the crime scene, Kruer and Barnett told a sheriff's deputy that there were only two attackers. Approximately two months after the incident, Kruer indicated that the first person who struck him was a person named "Greg" and he did not know the name of the second assailant. Approximately three weeks later, Kruer and Barnett identified appellant as the second assailant to a sheriff's deputy.
2. Count 2 - The Bella Cucina Restaurant
Although the Bella Cucina had video surveillance of the dance floor, sheriff's deputies did not request the footage from the night in issue. According to the owner of the restaurant, when the lights are dim and people are dancing, the quality of the video taken is "not really good."
Lucas spoke to a sheriff's deputy on the night of the crime. Lucas indicated appellant punched him with a closed fist. He did not indicate appellant was holding a glass.
Armando Padilla testified on direct examination that, prior to trial, Lucas told Padilla that he did not know who attacked him at the Bella Cucina restaurant. However, on cross-examination, Padilla indicated his memory of the conversation with Lucas was not "all that great" and that it was possible Lucas indicated appellant was the only person he saw when Lucas was punched. Lucas asked Padilla to tell appellant that he would "drop [the] charges" against appellant if appellant paid Lucas's medical bills.
III. DISCUSSION
A. Kruer's Photographs and Account of a Prior Battery
1. The Evidence Code section 402 Hearing
Appellant sought to admit two categories of evidence bearing on Kruer's credibility. The first was evidence consisting of photographs provided by Kruer to the district attorney's office. Kruer gave these photographs to the prosecution team in order to show the injuries inflicted by appellant. However, the photographs actually depicted injuries related to a prior occasion wherein Kruer was assaulted by another person at the bar. The second category was evidence that Kruer implicated an individual from the first assault even though he did not have personal knowledge of who attacked him.
Kruer testified at the Evidence Code section 402 hearing in the following manner. After he was assaulted by appellant, he told a detective that he had been attacked on a prior occasion at the same bar. Although Kruer did not see the person who assaulted him on the prior occasion, he indicated to the detective that somebody named "Vecaro" was the perpetrator because a witness at the bar told him that was the name of his assailant.
Kruer explained photographs were taken of his injuries placed on a compact disc. Kruer's mother had possession of the disc. Following the preliminary hearing, he provided the disc to a detective without examining the contents of it first. Unbeknownst to Kruer, the disc contained photographs related to injuries when an individual "blindsided" him on the prior occasion. He accidently provided the wrong photographs to the detective and he did not do so in an effort to prejudice appellant.
Defense counsel read a portion of a police report into the record in order to bolster his theory that Kruer's implication of Vecaro as the perpetrator of the prior assault demonstrated Kruer was not a credible witness: "[Kruer] was a victim in a previous battery at the [Rendezvous Bar]. . . . Was not reported due to him being intoxicated, and not desirous, and is non-desirous of a report. Not that he didn't know who it was . . . . He believes Jason Vecaro attacked him. He has no further description."
2. Any Error Was Harmless
The trial court relied on Evidence Code section 1101, presumably subdivision (a), in ruling the proffered evidence was inadmissible. That section prohibits, with certain exceptions, the admission of evidence of a person's character to prove conduct on a specific occasion. It appears that section was not applicable for two reasons: (1) the evidence was not offered to prove Kruer conducted himself in a particular manner on a particular occasion, but was sought by the defense to impeach Kruer and demonstrate he was not credible; and (2) even if the evidence was offered to show conduct in conformity with a particular character trait, Evidence Code section 1103, subdivision (a) provides an exception to Evidence Code section 1101, subdivision (a) and allows such evidence in a criminal action to prove conduct of the victim in conformity with that trait. (See, e.g., People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456-1457 [evidence of victim's prior false accusation is relevant to victim's credibility]; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 597-598 [victim's prior false report of rape admissible as relevant to truthfulness of victim's testimony].)
The improper exclusion of evidence concerning a defense, as opposed to the complete refusal of a particular defense, justifies reversal of a judgment of conviction only if it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317, citing People v. Bradford (1997) 15 Cal.4th 1229, 1325 & People v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence the defense sought to introduce only remotely related to Kruer's credibility and would have minimally assisted the defense. Kruer explained at the Evidence Code section 402 hearing that he did not review the photographs on the disc given to him by his mother and the fact that he turned over the wrong photographs was simply accidental. There is nothing in the record to demonstrate Kruer had a motive to falsely implicate appellant of a felony offense.
Moreover, given appellant's defense that he did not strike Kruer, it is unclear how, if at all, evidence that Kruer turned over the wrong photographs would have bolstered appellant's case. Barnett, a sober eyewitness of the incident, corroborated Kruer's testimony. She observed appellant kick Kruer and identified appellant as the assailant in a photographic line-up as well as in court.
Barnett was a driver and did not drink any alcohol prior to witnessing the assault.
The same holds true for the evidence regarding the identification of Vecaro as the assailant in the first attack. Kruer admitted he did not know the identity of his assailant but simply told the detective who he thought the perpetrator was based on information from an eyewitness. In fact, the portion of the police report provided by the defense as an offer of proof indicated Kruer "believ[ed]" Vecaro was the assailant but he did not want a report to be filed - such an approach to reporting crime is not consistent with a desire to implicate an innocent person.
B. Evidence Appellant Boxed was Properly Admitted
Over defense objection, on cross-examination, Padilla testified appellant had boxing training and had invited Padilla to his amateur bouts. Appellant contends the evidence was inadmissible because it went beyond the scope of direct examination and was precluded by Evidence Code sections 1101, subdivision (a) and 352. He is incorrect.
"'Cross-examination . . . "may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given . . . on direct examination." [Citation.] The cross-examination is not "confined to a mere categorical review of the matters, dates or times mentioned in the direct examination."' [Citation.]" (People v. Farley (2009) 46 Cal.4th 1053, 1109.)
The court provided the jury with the option of finding appellant guilty of assault with force likely to produce great bodily injury on count 2. That offense required the prosecution to prove appellant had the ability to apply force likely to produce great bodily injury. (§§ 240, 245, subd. (a)(1).) Padilla's testimony could have left the jury with the impression that appellant did not cause any damage to Lucas's head. The prosecutor was properly allowed to question Padilla about appellant's boxing training because that evidence tended to establish appellant had the ability to cause a great bodily injury - an element of the offense. (See People v. Farnam (2002) 28 Cal.4th 107, 187-188 [the prosecutor was entitled to ask the defendant questions on cross-examination to rebut impressions left by the defendant's testimony].) The trial court did not abuse its discretion in overruling appellant's objection that such cross-examination was beyond the scope of direct. (See People v. Lancaster (2007) 41 Cal.4th 50, 102 ["'It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination'"].)
Moreover, Evidence Code section 1101, subdivision (a) did not bar admission of the evidence because the evidence was not designed to prove conduct on a specific occasion or that appellant had the propensity to instigate barroom fights. As previously stated, the evidence was relevant to show whether force used by appellant would be likely to result in great bodily injury. There was no evidence that a person's participation in organized boxing is indicative of a propensity to engage in barroom assaults.
Finally, appellant's claim that Evidence Code section 352 precluded admission of the evidence fails. Although appellant made passing reference to the prejudicial and burdensome nature of the evidence in the trial court, he did so in the context of arguing the evidence should be excluded pursuant to Evidence Code section 1101. This was not a specific objection under Evidence Code section 352, thereby waiving the claim on appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1130 [relevance objection does not preserve a challenge under Evidence Code section 352].) Nonetheless, the exclusion of the evidence was not warranted under Evidence Code section 352 because it was highly probative on the issue of appellant's ability to cause injury and any undue prejudice was slight given (a) the insignificant cross-examination on this issue and (b) the legitimacy of boxing as a mechanism for physical fitness and sport.
Evidence Code section 352 provides the trial court with discretion to exclude relevant evidence if the probative value is substantially outweighed by, inter alia, undue prejudice.
After arguing the evidence was beyond the scope of direct examination, defense counsel stated, "It's also going to evidence that is so prejudicial to [appellant] that it is clearly in the area of [Evidence Code] section 1101[, subdivision] (a). If he wants to I could start asking him about Mr. Ruiz's training in this regard too. I don't want to do that because I think it's burdensome to the jury. I think we're done."
In response to defense counsel's questions seeking specifics about appellant's training, Padilla indicated, "I don't know. [¶] [¶] . . . A lot of my friends are training for that. I don't know [if it is] for professional or personal training."
The court's refusal to exclude the evidence under Evidence Code sections 1101, subdivision (a) or 352 did not amount to an arbitrary or capricious ruling. Thus there was no abuse of discretion. (People v. Hartsch (2010) 49 Cal.4th 472, 497 [a court abuses its discretion in admitting evidence if it exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice].)
C. Credits Were Properly Awarded
Section 2933.1, subdivision (c) restricts the amount of presentence conduct credits "following arrest and prior to the placement in the custody of the Director of Corrections," to 15 percent of the actual time served if the defendant is convicted of certain enumerated felonies. Although we have held this limitation does not apply to felons if imposition of sentence is suspended and probation is granted (In re Carr (1998) 65 Cal.App.4th 1525, 1528-1536 (Carr)),respondent argues appellant is subject to the limitation because sentence was imposed, the execution of said sentence was suspended, and he was granted probation. Respondent is incorrect.
After examining the legislative history of section 2933.1, we concluded in Carr that the above-quoted language "reasonably can be construed to read that the 15 percent limitation on presentence conduct credits applied to state prisoners." (Id. at pp. 1535-1536.) "No committee report states with any specificity at all that probationers were expected to be subject to the 15 percent limitation. Governor Wilson's signature message explicitly stated that state prisoners were to be subject to the . . . limitation . . . ." (Id. at p. 1536.) Thus, we held a defendant who has been placed on probation is not subject to the limitation set forth in section 2933.1, subdivision (c). (Ibid.)
The rationale of Carr applies equally here. Appellant is not a state prisoner and is not subject to punishment as a state prisoner unless he violates probation. The suspension of the execution of sentence does not affect appellant's status as a probationer; it merely obligates a future court to impose a particular term of imprisonment if appellant is found in violation of probation and incarcerated in state prison.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J. KRIEGLER, J.