Opinion
F060425 Fresno Super. Ct. No. F09400138
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN VALLE, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Javier Gonzalez, a taxi driver in Fresno County, picked up appellant/defendant Benjamin Valle outside of a bar around midnight. Gonzalez agreed to drive defendant to Parlier, even though defendant did not have the cab fare, because defendant promised his cousin would meet them and pay the amount due. Gonzalez drove defendant to the agreed location. Defendant got out of the taxi, but defendant's cousin was not there. When Gonzalez asked about his money, defendant shot Gonzalez in the head and thigh. Defendant later claimed Gonzalez was angry because defendant did not pay him, Gonzalez tried to run him over with the taxi, and defendant shot at the taxi in self-defense.
After a jury trial, defendant was convicted as charged of count I, attempted murder (Pen. Code, §§ 664/187, subd. (a)); and count II, shooting at an occupied motor vehicle (Pen. Code, § 246). As to counts I and II, the jury found defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)); personally discharged a firearm (Pen. Code, § 12022.53, subd. (d)); and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Defendant pleaded guilty to count III, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and admitted that he served a prior prison term (Pen. Code, § 667.5, subd. (b)).
Defendant was sentenced to nine years for count I, a consecutive term of one year for the prior prison term enhancement, and a consecutive term of 25 years to life for the personal discharge of a firearm.
On appeal, defendant argues the court erroneously excluded evidence about Gonzalez's character for violence, and the court improperly instructed the jury with CALCRIM No. 362 as to defendant's possible false statements and consciousness of guilt.
FACTS
Javier Gonzalez was a taxi driver. Sometime between midnight and 1:00 a.m. on February 21, 2009, Gonzalez was parked outside the Mexico Bar nightclub near Elm and Jensen in Fresno County, waiting for a possible fare. A Hispanic male entered the taxi's front passenger seat and said he wanted to go to Parlier. Gonzalez told him how much it would cost. The passenger, who spoke Spanish, said he had spent all his money in the nightclub, and promised to pay Gonzalez when they reached their destination because his cousin would have the money. The passenger spoke to someone on his cell phone, and told Gonzalez that his cousin would meet them at Academy and Adams Avenues. Gonzalez agreed to the deal because it was common for passengers to pay him once they reached their destinations.
Gonzalez testified that the passenger, who was later identified as defendant, gave him directions, and also kept making cell phone calls during the drive. They reached the intersection of Adams and Academy Avenues, where there was a house next to the "Purple Plum" fruit stand, which was closed. Gonzalez testified that defendant said to drive behind the fruit stand, but Gonzalez refused because it was very dark, and he thought it was not safe.
Gonzalez stopped on the side of Academy, facing the house. Defendant got out of the taxi, and said he was going to the house to get the taxi fare. However, defendant remained near the taxi and made more cell phone calls. Gonzalez was anxious to drop off defendant and return to the nightclub to pick up more fares.
Gonzalez asked defendant when his cousin was going to arrive. Gonzalez remained in his taxi and waited for a response. After a brief period of time, Gonzalez saw a pistol pointed at him from the passenger door and heard someone say, "[H]ere's your money." Gonzalez was afraid, and he put up his hand between his face and the pistol and yelled, "No." Gonzalez testified he tried to drive away and escape, but he did not remember what happened after that.
Gonzalez testified his next memory was waking up in the hospital. He had been shot in the right thigh and in the right side of his head above the ear. The head wound was life-threatening and created pressure on the brain. Gonzalez did not remember being shot.
Gonzalez testified that he never argued or cursed at defendant; that he never had a gun; that he never threatened defendant; and that he never attempted to run over defendant. Other witnesses to the shooting
Around 1:30 a.m., Emilio Cabrera, Jr. and Mari Quilantan were driving by Adams and Academy Avenues. Cabrera and Quilantan saw a taxi travel at full speed in reverse, from one side of Academy to the other side, and end up in a vineyard. The taxi's headlights were on. Cabrera stopped at the intersection for about 30 seconds and then turned on Adams. About 200 feet from the intersection, Cabrera and Quilantan saw a man walking on Adams. Cabrera testified the man was walking normally and was wearing some type of blue and white parka. The man looked back when he saw Cabrera's headlights, and he kept walking.
Around 1:35 a.m., Zachary Bulbulian was driving on Adams Avenue. At the intersection of Academy Avenue, he saw a taxi parked by the closed fruit stand. A man was standing next to the taxi's passenger door. The man was looking into the taxi's passenger compartment, throwing up and waving his arms, and shrugging his shoulders, as if he was arguing with someone.
Bulbulian testified that he watched for about two minutes and then saw the taxi's reverse taillights activated. The taxi started to back up. Within seconds, Bulbulian saw a muzzle flash and heard three shots fired in quick succession by the person who was standing outside the taxi's passenger door. The passenger door was open, and the gunman appeared to be aiming inside the taxi. The gunman was about three feet away from the taxi when he fired.
Bulbulian, who was familiar with firearms, thought the gunshots were fired from a nine-millimeter handgun. Bulbulian called 911 when he heard the gunshots. Bulbulian testified the gunman was not in danger of being hit by the taxi when he opened fire. He never saw the gunman stumble or get knocked to the ground by the taxi.
Bulbulian testified the taxi's taillights went off, and the vehicle appeared to go into "drive." The taxi moved forward and went past the gunman. The gunman performed a quick side-step to get away from it, but Bulbulian did not believe the taxi driver was trying to hit the gunman. The gunman was standing at the taxi's rear passenger-side fender, and he fired two more shots into the rear of the taxi's passenger compartment.
After the last set of shots, Bulbulian drove down Adams, turned on Mendocino, and parked so that he was facing the fruit stand. Bulbulian bent down to grab his cigarettes from the floor of his car. When he looked up, he saw the gunman running on Adams toward Bulbulian's car. The gunman was wearing a dark blue hooded jacket. Bulbulian put his car in reverse and drove away from the area. The investigation
At 1:40 a.m., Fresno County Sheriff's Deputy Darrel Olivas received the dispatch about the shooting and responded within a few minutes. He found the taxi cab in the vineyard at the corner of Adams and Academy. The taxi appeared to have backed into the vineyard and crashed into grape vine stumps. The taxi's headlights were on, and all four doors were closed.
Deputy Olivas found Gonzalez in the driver's seat. Gonzalez was initially conscious, moving, and responsive. He kept reaching down to look for his wallet. Gonzalez was bleeding from a bullet wound to his forehead.
There were tire tracks which indicated the taxi had traveled directly in reverse from the east side to the west side of Academy Avenue, and then stopped in the vineyard. There were no spin-out marks. There were no tire marks to indicate the taxi had accelerated forward.
The taxi was found in the vineyard on the west side of Academy. There were two expended nine-millimeter cartridge casings and one live nine-millimeter round found near a telephone pole on the east side of Academy. It was later determined that the two expended casings had been fired from the same weapon.
There was a bullet hole in the taxi's front windshield, which had been fired from the exterior into the interior of the taxi. There was a bullet fragment lying on the top portion of the taxi's driver's seat, and blood on the driver's seat itself. There was dirt and mud on the interior portion of the taxi's front passenger door, which indicated that door was open at some point when the taxi was moving in reverse.
The officers found Gonzalez's cell phone in the taxi. They also found a Motorola cell phone on the front passenger seat. There was $17 in the driver's side door pouch. There were no weapons in the taxi.
In March 2009, Detectives Palma and Toscano interviewed Gonzalez after he was released from the hospital. Gonzalez tried to remember what happened before the shooting, and said he might have been verbally "pushy," "impatient," or "upset" when the passenger's cousin did not arrive to pay him. Gonzalez said the first shot was fired into his leg. Arrest of defendant
The investigators obtained a search warrant for the Motorola cell phone's records. They contacted the owner, who said he had lost the cell phone in Parlier. A further search of the cell phone records led to a woman who said she had received several calls from that number. She provided additional information which identified defendant as the person who placed calls from the Motorola cell phone.
At trial, Silvia Rodriguez testified defendant called her several times between February 21, 2009, and April 5, 2009, and repeatedly asked her for money that she allegedly owed him. Defendant said he could not go to her house because a detective was looking for him. Defendant also said that he was going to leave, but he was not sure where he was going.
On the evening of April 8, 2009, defendant was arrested in Parlier for shooting Gonzalez. Defendant's postarrest interview
Detectives Palma and Toscano interviewed defendant at 1:00 a.m. on April 9, 2009. They advised defendant of his constitutional rights, and he agreed to answer questions. They conducted the interview in Spanish, and it was audio and videotaped. During the entirety of the two-hour interview, defendant repeatedly said—about 40 to 50 times—that he was going to tell the truth, and he was not going to lie to them.
Defendant asked the detectives why he was there and what they wanted to talk about. The detectives explained they were investigating a shooting that happened on February 21, 2009; that defendant had been identified as the responsible person; and that it was important for him to explain things, if he had an explanation. The detectives said they had learned that defendant took a taxi around 1:00 a.m. from a nightclub in Fresno, and the taxi took him to the area of Academy. Defendant interrupted and clarified the taxi took him to "Academy and Adams." The detectives said they thought defendant had an explanation. Defendant replied: "That's exactly right. But there wasn't any shooting."
The detectives asked him about his conversation with the taxi driver. Defendant said he did not know the taxi driver, and their conversation was cordial and friendly. They just had a general conversation from the nightclub to the Academy and Adams location. The detectives asked defendant if the driver tried to attack him during the trip, and defendant said no. They asked defendant if he made cell phone calls during the trip, and defendant said yes. Defendant said he told the taxi driver that he would be paid when they reached the destination, and his friend would be there with the money.
The detectives showed defendant the Motorola cell phone which had been found in the cab. Defendant said he used that cell phone, and he dropped it on the road as he ran away from the scene.
Defendant repeatedly said that he did not shoot anyone. Detective Toscano testified that as the interview continued, defendant referred to a taco truck that usually parked at Academy and Adams to clarify the location, and the following exchange occurred:
" 'QUESTION: … When you say "right there," where are you referring to? " 'ANSWER: It is where I shot that man, I think. " 'QUESTION: On Academy— " 'ANSWER: I didn't see it there. " 'QUESTION: -- and Adams? " 'ANSWER: Okay. Yes. That's it. That's why I say there wasn't any shooting. That was just something between me and him. I arrived there. And my friend was in the back because they played volleyball there in the back. They played volleyball there sometimes.' " (Italics added.)
Detective Toscano testified that defendant's sudden reference to the irrelevant subject of volleyball was an attempt to deflect the conversation in a different direction. (RT 264-265)
Defendant explained that his friend was supposed to meet him at Academy and Adams, and either pay the taxi driver or help him with the money. The friend was not there, and the taxi driver became angry, rude, and/or frustrated because he was not paid. Defendant told the taxi driver to go behind the fruit stand because his friend might be there, but the driver refused.
" 'QUESTION: He wanted to force that money out of you?
" 'ANSWER: Yes, by force. That's true. He wanted to force his money out of me too. Supposedly, it's not enough for a taxi driver to do that. I don't know. But that man was very bothered. So then I told him if he's telling me that he's back there, what do you want me to do? So let's go back there. And he'll give it to you there. So he –' "
Defendant said he thought the taxi driver was reaching for a gun, but admitted he never saw a gun that night. The taxi driver did not know that defendant was carrying a gun.
At one point during these exchanges, defendant claimed he misunderstood the detectives' initial questions about a shooting. He thought they meant a shoot-out between multiple people, and that was why he initially denied that he was involved in a shooting.Defendant said he knew the police were looking for him, but he was afraid to talk to them because of his immigration status.
Detective Toscano testified that they asked defendant about a shooting on three separate occasions, and defendant repeatedly denied being involved in a shooting until they said that they knew the date and location of the shooting, and they knew defendant was in the taxi.
Defendant said he got out of the taxi, and the driver accelerated it in reverse. Defendant initially said the taxi driver almost hit him, but he was not hit by the taxi. Defendant then said that the taxi's door actually hit him, and there should be some evidence of that on the door itself. Defendant said the taxi came back toward him, and defendant thought the driver was going to kill him.
Defendant said he fumbled around in his waistband for the nine-millimeter gun, and he fired when the taxi was accelerating in reverse. Defendant also said that he fired the gun when the taxi went forward, because he thought the taxi driver was going to knock him down and leave him out there.
Defendant said when he prepared to fire the gun, he pulled the lever to load it, and it ejected a live round. Defendant was upset the gun wasn't loaded, and he had to load a round into the chamber. Defendant used the terms "chamber" and "rack" to describe the process. The detectives asked defendant what was going through his mind when he fired the gun. Defendant said he was thinking about "a very sad problem" because his girlfriend had left him, and he was alone. Defendant also said:
" 'I don't know if it was out of anger like you said. I don't know what to call it. But more so I think it was nervousness, fear and it was nighttime. The truth is, it wasn't what I wanted to do, but maybe it does look like I wanted to do it or whatever. I don't care.' "
Defendant admitted that he fired two or maybe four shots at the taxi. He had obtained the gun from a friend. Defendant said he was trembling and scared when he fired the gun. Defendant said he shot "at the cab—the vehicle," but he did not know if the bullets hit the hood, windshield, or the top of the car. Defendant just wanted to scare him. The detectives asked defendant if he knew that firing a gun at someone could hurt or kill that person. Defendant said, " 'No. I simply – I simply know that that is prohibited, to carry a gun.' "
The detectives asked what happened after he fired the shots:
" 'I don't know if he put the car in reverse and took off. It was nighttime. And he went like hell. He went towards the back and I ran. So I got nervous and I called the guy. And he wasn't there. And I dropped the telephone. And I didn't even pick it up.' "Defendant said he ran eastbound on Adams, and a car came up behind him.
As the interview ended, Detective Toscano had the following exchange with defendant:
" 'QUESTION: The guy you shot, I mean, that wasn't right. No-or-
" 'ANSWER: No, it wasn't right. I know that it wasn't right.
" 'QUESTION: That was dangerous.
" 'ANSWER: I know that it was not right. I know that I didn't do something good.' "
DEFENSE EVIDENCE
Deputy Olivas, recalled as a defense witness, testified that when he responded to the shooting scene, Gonzalez appeared to be in shock from the gunshot wound to his right temple. Deputy Olivas asked Gonzalez what happened. Gonzalez was not focused and did not respond. Olivas repeatedly asked who shot him. Gonzalez then said that "when he was driving the guy shot him," and the guy "took off" after he was shot.
Colin Spence, an investigator for the district attorney's office, testified about his pretrial interview with Zachary Bulbulian. Bulbulian said the taxi went into reverse, and a gunman fired three shots from the passenger side of the taxi. The taxi then went forward, and he thought the car was going to hit the person who was standing there, but the taxi did not hit him. Defendant's trial testimony
Defendant testified at trial and admitted his prior convictions for distribution of cocaine in 2001 and possession of cocaine with intent to sell in 2003. Defendant also admitted that he was deported from the United States in 2000, and he was in the country illegally.
Defendant testified that he was at the bar with a friend that night. His friend was drunk and did not want to leave the bar. Defendant was concerned about the crowd outside the bar. His drunken friend gave him the nine-millimeter handgun and told him to wait in the friend's car. Defendant did not feel good and decided to take a taxi cab. When he got into the taxi, he only had $17 to $20, and the driver said the trip would cost about $50. Defendant gave all his cash to the driver, called his cousin and arranged for the cousin to meet him and pay the rest of the fare.
Defendant also testified that he thought he could borrow the taxi fare from a lady who ran a taco truck at Academy and Adams. When the taxi driver drove him to that intersection, however, that lady and the taco truck were not there. Defendant's cousin also was not there, and the taxi driver became angry. Defendant never told the driver to go behind the closed fruit stand. Defendant testified the driver reached for his waistband and wanted to take the money by force, and the driver said he was going to take defendant to the police. Defendant told the driver that he could not go to the police because he would be deported.
Defendant testified he got out of the taxi, and the driver tried to grab him. The driver put the car into reverse and hit defendant with the taxi's open passenger door. The taxi then went forward, and defendant thought the taxi was going to run him over. Defendant remembered he had the gun and fired two shots. Defendant was just trying to scare the driver, and he did not aim the gun at any particular place.
Defendant testified that he dropped his cell phone when he left the scene, but he still had the gun. Defendant did not know whether the taxi driver was wounded when he left, and he still did not know about the driver when he was arrested and interviewed. Defendant denied that he stood on the passenger side of the taxi and fired directly into the cab.
On cross-examination, defendant claimed the taxi was already going in reverse when he got out of the car. As the taxi went forward, he reached into his pocket and pulled out the gun. Defendant said he fired the gun, and the taxi again went into reverse, crossed the street, and ended up in the vineyard. Defendant claimed he shot at the taxi's lights. Defendant insisted he fired in self-defense because he thought the taxi driver was going to run over and kill him.
Defendant testified that the person who was going to pay his taxi fare was not actually his cousin. He did not know this person's name, but he was called "primo" or "the Arab." Defendant thought the lady with the taco truck was always at that intersection on weekends, but he never called her to check. Defendant knew the gun was loaded, and that it was illegal for him to carry a gun because of his felony conviction.
DISCUSSION
I. The trial court properly excluded evidence about the victim's character
Evidence Code section 1103, subdivision (a)(1) provides that in a criminal case, a defendant may introduce evidence of the character or a trait of character of a victim, in the form of opinion, reputation, or specific instances of conduct, to prove conduct of the victim in conformity with the character or trait of character.
All further statutory citations are to the Evidence Code unless otherwise indicated.
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At trial, defendant moved to introduce evidence about the alleged violent character of Gonzalez, the victim, pursuant to section 1103. Defendant's offer of proof was that Gonzalez had been arrested, but not charged or convicted, in a misdemeanor domestic violence incident in 2001. Defendant argued such evidence was relevant and admissible to support defendant's claim of self-defense in this case. The court excluded the evidence pursuant to section 352.
On appeal, defendant argues the court abused its discretion when it excluded this evidence, and asserts Gonzalez's arrest in 2001 was relevant and probative to support defendant's claim that Gonzalez tried to run him over with the taxi, and defendant fired into the vehicle in self-defense.
We will review the court's comments and rulings on this matter and then discuss the application of Evidence Code section 1103.
A. The court's initial comments and ruling
On April 28, 2010, defendant's trial began with motions in limine. The prosecutor advised the court and defense counsel that Gonzalez, the taxi driver, had a prior arrest for violating Penal Code, section 243, subdivision (e)(1), battery against a spouse or cohabitant. The court asked defense counsel if he was going to determine whether this evidence was admissible at trial, and counsel said yes.
On April 29, 2010, the prosecutor advised the court that he had additional information about Gonzalez's arrest record. Gonzalez was arrested in Fresno County on March 2, 2001, for violating Penal Code section 243, subdivision (e)(1), and an emergency protective order was granted at the scene to the victim. However, the district attorney's office decided not to file charges against Gonzalez because of insufficient evidence.
Defense counsel reviewed the 2001 arrest report and stated that Gonzalez allegedly arrived at the house of his estranged wife early in the morning, jumped on the hood of her car, chased her, held her down, and she escaped. Defense counsel argued Gonzalez's prior arrest and violent character were relevant pursuant to section 1103 to show Gonzalez had a temper, that he was the aggressor toward defendant, and defendant's self-defense claim in this case was credible.
The court asked whether Gonzalez made a statement to the police when he was arrested in the domestic violence case. Defense counsel said there was no evidence that Gonzalez made a statement at that time, and the arresting officers just cited and released him. Defense counsel was trying to locate the alleged victim to corroborate the story.
The court noted that if Gonzalez was questioned about the 2001 domestic violence incident at trial and denied culpability, then defense counsel did not have any evidence to refute Gonzalez's expected denials. Defense counsel asked for time to locate the victim in the domestic violence incident.
The court asked the parties whether the evidence would be admissible under section 1103, if Gonzalez testified at defendant's trial and admitted the allegations of the 2001 police report. The prosecutor replied that even if the evidence was relevant, the court still had to determine whether it was more probative than prejudicial under section 352. The prosecutor asserted that the sudden and violent confrontation that led to the attempted murder charges against defendant in this case were vastly different than an alleged domestic violence disturbance. The prosecutor also argued the 2001 incident was at most a misdemeanor, and it was far too remote from the charged offenses in this case since it occurred eight years earlier. Defense counsel countered that evidence of the victim's character for violence was relevant and admissible given defendant's claim of self-defense.
The court declined to rule on the admissibility of Gonzalez's prior arrest, and acknowledged the 2001 incident could be relevant and admissible depending on the nature of the evidence.
B. The court's further rulings
On May 4, 2010, after the jury was selected, the court conducted a hearing outside the jury's presence as to the admissibility of Gonzalez's prior arrest. The court reviewed the relevant documents and clarified that defendant was arrested for a misdemeanor violation of Penal Code section 243, subdivision (e)(1), the victim was his spouse or cohabitant, and he had allegedly pushed her down. At the time of his arrest, Gonzalez apparently admitted that he touched her, but denied that he pushed her or committed any act of violence. The court further stated that criminal charges were never filed against Gonzalez because there were no independent witnesses to the incident.
Defense counsel clarified that according to the reports about the 2001 incident, Gonzalez showed up at the alleged victim's residence, they argued, and she was pushed down. She fled out of the residence and got into her car. Gonzalez jumped on the hood of her car as she tried to drive away, and he acted in a violent manner. She got away and called for help.
Defense counsel said he was still trying to find the alleged victim in the 2001 case. Counsel argued the 2001 incident was relevant to show Gonzalez's violent character and that he had a temper, to support defendant's claim of self-defense involving the charged offenses.
The court acknowledged that character evidence about Gonzalez, as the victim of the charged offenses in this case, was potentially relevant to prove Gonzalez's conduct in conformity pursuant to section 1103. The court further acknowledged defendant's trial theory that Gonzalez had a violent character, and Gonzalez allegedly engaged in a violent act toward defendant which required defendant to act in self-defense in this case. However, the court was concerned about the possible prejudicial effect from the 2001 incident:
"But having said [the evidence is] relevant, it's still subject to the court's [section] 352 analysis which is what I have held until now until both sides were able to flesh it out to the extent you have at this moment. Of course, the court's consideration under [section] 352, particularly, one is undue consumption of time. And a second is the confusion of the issues here. That's why—I think I made a comment before we even got started with evidence in this case that one of the things the court was going to have to consider is whether, in effect, we're going to have a trial within a trial here and decide whether or not Mr. Gonzalez acted with some kind of violence toward his wife in 2001. That's, I guess, eight years preceding the subject matter of this case.
"So, you know, while I've conceded that it's admissible and relevant under [section] 1103, it's [sic] relevance is tenuous, given the length of time and the fact that there's no relationship between the parties in this particular case as opposed to the—some kind of marital relationship between Mr. Gonzalez and the alleged victim in the 2001 incident.
"But more important than all of this, is this fundamental idea of a trial within a trial. And from everything I've heard here Mr. Gonzalez is going to deny this. And the only way that the defense is going to prove that he, in fact, does have a character for violence in the face of his denial is to find this witness and bring her in here, which then invites the prospect that the jury is going to have to weigh in the balance of this whether this is true or not. And not to say that it's never reasonable that that take place in a case—I wouldn't say that. It seems to me it's not reasonable in this case.
"Striking that [section] 352 analysis balance here, the likelihood that this is simply going to confuse the issues about a matter that has very tenuous, probative value in the first place, meaning an act of violence involving a spouse, eight years before the events of the alleged act of violence applied to a complete stranger and a customer, it seems to me that that probative value is greatly outweighed by the two subject matters here, the undue consumption of time and the confusion of the issues for the reasons I've just articulated here." (Italics added.)
The court clarified that it would not make a final decision until defense counsel was able to speak to Gonzalez about the incident. As for the alleged victim, the court was wary of introducing evidence about her statements even if defense counsel found her:
"Even if you locate [the alleged victim of the 2001 incident] I think it's highly unlikely, unless she tells you that she had some other independent evidence of this event, seems to me we're stuck with the same idea that the jury is going to have to figure out whether this even happened for it to be relevant at all. And I'm not likely to allow a trial within a trial, unless there is some independent evidence which, obviously, means the DA's office didn't know about 2001." (Italics added.)
Defense counsel asked whether the court would refuse to admit the testimony of the alleged victim if he was able to find her. The court replied that the defense investigator could talk to Gonzalez and determine if he was going to admit whether the 2001 incident occurred. If Gonzalez admitted the domestic violence incident happened, then the evidence was relevant under section 1103. "But if it's going to be a contest about whether it happened at all, then I'm not allowing it, is the long and short of it, for the reasons I've already articulated here."
C. The court's final ruling
Later on May 4, 2010, during a break in Gonzalez's testimony to the jury, the court asked defense counsel to place on the record his conversation with Gonzalez about the 2001 incident. Defense counsel said he spoke to Gonzalez in the hallway, and Gonzalez admitted he went to the alleged victim's residence, he put his hands on the alleged victim, he "gently pushed her back to the couch," and he sat on the car hood as she tried to drive away.
The court held the evidence about the 2001 incident was inadmissible because the prior incident "was not an act of violence which would make this relevant under [section] 1103 based on what [Gonzalez] was prepared to admit." The court further held that any attempt to subpoena the alleged victim would be irrelevant because her testimony would be inadmissible for the reasons it already articulated. The court thus excluded any evidence about Gonzalez's arrest in 2001 for the domestic violence incident.
D. Section 1103
Evidence of a person's character is generally inadmissible to prove that person acted in conformity with his or her character, or trait of character, on a given occasion. (§ 1101, subd. (a).) Section 1103, subdivision (a)(1) states an exception to this general rule:
"In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (§ 1103, subd. (a)(1).)
A defendant being prosecuted for homicide or an assaultive offense, and who asserts self-defense, may introduce evidence of specific violent acts by the victim on a third person to show that the victim has a violent character and was the aggressor in the current offense. (People v. Wright (1985) 39 Cal.3d 576, 587 (Wright); People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447 (Shoemaker); People v. Rowland (1968) 262 Cal.App.2d 790, 797.)
The admission of evidence pursuant to section 1103, however, is not without bounds and is subject to the dictates of section 352. (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828 (Gutierrez); Wright, supra, 39 Cal.3d at p. 587; Shoemaker, supra, 135 Cal.App.3d at p. 448.) The court may exclude otherwise admissible evidence if admitting the evidence would confuse the issues at trial, unduly consume time, or be more prejudicial than probative. (Gutierrez, supra, 45 Cal.4th at pp. 827-828.)
We review the trial court's rulings under section 352 using the deferential abuse of discretion standard. (Gutierrez, supra, 45 Cal.4th at p. 827; People v. Pollock (2004) 32 Cal.4th 1153, 1171.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, 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. Guerra (2006) 37 Cal.4th 1067, 1113.)
E. Analysis
Defendant contends the court abused its discretion when it excluded evidence about Gonzalez's arrest in 2001 for the domestic violence incident. Given defendant's self-defense claim in this case, evidence of Gonzalez's alleged violent character may have been relevant under section 1103. However, the court did not abuse its discretion when it excluded this evidence pursuant to section 352 because the probative impact of the 2001 incident was clearly outweighed by the potential prejudice of introducing evidence about this incident.
Defendant never claimed that he knew Gonzalez; that he knew about the 2001 incident; or that he knew about Gonzalez's alleged character for violence. At most, the 2001 incident consisted of Gonzalez's arrest for misdemeanor battery. However, Gonzalez denied committing any violent acts against the alleged victim. There were no independent witnesses to the incident. Gonzalez was cited and released at the time of the incident and criminal charges were never filed against him. He was not convicted of committing any offense, and the incident occurred eight years before the instant case.
Even if defendant had introduced testimony from the alleged victim of the 2001 incident, the section 1103 evidence would have been based on a misdemeanor arrest for which Gonzalez was never charged. (See, e.g., Gutierrez, supra, 45 Cal.4th at p. 827.) "Since 'substantial prejudicial effect [is] inherent in [such] evidence,' uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded. [Citation.]" (People v. Thompson (1980) 27 Cal.3d 303, 318, italics and brackets in original, fn. omitted.) "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. [Citations.]" (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.)
There are no similarities between the 2001 incident, in which Gonzalez allegedly pushed his former wife or cohabitant, and the charges in this case, where defendant shot Gonzalez in the head allegedly over a dispute about taxi fare. The lack of similarity between the two incidents, which occurred eight years apart, rendered the potential evidence about the 2001 arrest of little probative value as to Gonzalez's alleged character for violence, especially since Gonzalez denied committing any violent acts against the alleged victim in the 2001 incident. (See, e.g., Shoemaker, supra, 135 Cal.App.3d 442 at pp. 445, 450.)
Moreover, the court did not abuse its discretion based on its reluctance to conduct a "mini-trial" to resolve the obvious dispute between Gonzalez and the alleged victim of the 2001 incident as to exactly what happened between them, which would have created the possibility "of confusing the issues, or of misleading the jury." (§ 352; see, e.g., People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Geier (2007) 41 Cal.4th 555, 582.) Section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296; People v. Ayala (2000) 23 Cal.4th 225, 301.) Given the apparent conflict about Gonzalez's actual conduct during the 2001 incident, the court could reasonably conclude that to permit Gonzalez and the alleged victim to testify would risk embroiling the jury in a mini-trial on an eight-year-old misdemeanor matter for which criminal charges were never filed. The court properly exercised its discretion to exclude evidence about the alleged domestic violence incident because it would have been time- consuming and confusing for the jury "to determine whether the uncharged offense[] had occurred." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
Defendant further contends the court's exclusion of this evidence violated his constitutional right to present a defense. A defendant has a due process right to "present all relevant evidence of significant probative value to his or her defense. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 998-999, italics in original.) However, the defendant "has no constitutional right 'to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using … section 352.' [Citation.]" (Shoemaker, supra, 135 Cal.App.3d at p. 450.) "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.]" (People v. Cunningham, supra, 25 Cal.4th at p. 999.) Thus, a trial court's "application of ordinary rules of evidence—including the rule stated in … section 352— generally does not infringe upon this right [to present a defense]. [Citations.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Brown (2003) 31 Cal.4th 518, 545.) "Accordingly, such a ruling, if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836 .... [Citation.]" (People v. Cunningham, supra, 25 Cal.4th at p. 999.)
The court's decision to exclude evidence of the 2001 incident did not violate defendant's right to present his self-defense theory. Defendant claimed Gonzalez was going to run him over with the taxi because he failed to pay the fare. Defendant ably presented this theory to the jury through his own testimony. In addition, the jury heard evidence that Gonzalez acknowledged to the detectives that he may have expressed his anger at defendant's failure to pay him, and Bulbulian told the investigator that he thought the taxi was going to hit defendant. Nevertheless, defendant's self-defense claim was seriously undermined by his numerous inconsistent statements to the detectives after his arrest, when he repeatedly denied being involved in any type of shooting and failed to disclose that the taxi driver allegedly tried to run him over with the car.
We find the trial court did not abuse its discretion when it found the prejudicial effect of introducing conflicting evidence about the 2001 incident outweighed any probative value, and there is no reasonable probability that defendant would have obtained a more favorable outcome had he been permitted to introduce evidence of the 2001 incident, which was an extremely minor and subsidiary issue in this case. (People v. Bunyard (1988) 45 Cal.3d 1189, 1213.)
II. CALCRIM No. 362
As set forth ante, the prosecution introduced evidence about defendant's lengthy postarrest interview. Based on defendant's statements during that interview, the court instructed the jury with CALCRIM No. 362, consciousness of guilt:
"If you find the defendant made a false or misleading statement relating to the charged crime knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.
"If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant argues CALCRIM No. 362 was an inappropriate pinpoint instruction because it unfairly focused on the testimony of a single witness—defendant. Defendant further argues the instruction was prejudicial because the court refused to allow the jury to watch and/or hear the videotaped interview of defendant, in order to evaluate his demeanor when he responded to the detectives' questions and consider whether he misunderstood their initial questions about a shooting.
A. Defendant's postarrest interview
As set forth ante, Detectives Palma and Toscano interviewed defendant after he was arrested. The interview was conducted in Spanish, and it was audio and videotaped.
During pretrial motions in limine, the court asked the prosecutor to confirm that an English translation transcript for the interview had been prepared and shared with defense counsel. The prosecutor said yes. The court said it was "very unlikely" that it would allow the jury to hear any audio from the recorded interview "[s]imply because it provides all kinds of potential problems with people [on the jury] who are fluent in Spanish having disagreements, separate and apart from the interpretation given by the interpreter in the courtroom."
The court acknowledged that defense counsel was considering whether to have the jury watch the videotape to see defendant and the detectives during the interview. The court was willing to consider the possibility that defense counsel might want to present that video. "But I am going to make it clear right now, I'm not going to allow the jury to hear the Spanish language statements" from the interview.
The court asked defense counsel if he had looked at the interview transcript, and whether there were substantial disagreements concerning the Spanish/English translation. Defense counsel said that his Spanish language investigator had reviewed it, and he did not have any substantial problems.
The court returned to this issue during a later point while reviewing further motions in limine. The prosecutor stated he had redacted irrelevant portions of defendant's interview and was going to edit the transcript and videotape accordingly. The court asked the prosecutor to share the redacted transcript with defense counsel. The court again said it would not allow the jury to hear the audio portion of the interview.
" … I think I'm still fundamentally opposed to the idea that there be any video or audio played for this jury that included the Spanish language statements that were given. If you think that there's a need to show just the video depictions from this interview and that they need to be lined up with the transcript then have it ready to go and I'll decide it, you know, when and if there's an objection. I don't know that there's any reason that I've heard from counsel that there should be any opposition to a video depiction in the courtroom. The jury would otherwise be entitled to see it assuming a foundation is laid. As long as … if it's purported to be contemporaneous with something that's read into the courtroom that it in fact be contemporaneous. That would be the only concern. But that'll be your judgement. If you have prepared one and have it ready to go, share it with [defense counsel] so I can make sure we have any objections resolved." (Italics added.)
During trial, Detective Toscano testified about defendant's postarrest interview. Toscano testified that they asked defendant about a shooting on three separate occasions, and defendant repeatedly denied being involved in a shooting until they said that they knew defendant was in the taxi, and they knew the date, location, and description of the shooting. The prosecution did not show any portion of the videotape to the jury, and defense counsel did not request to introduce the audio or videotape into evidence.
B. The instruction and closing arguments
After the parties rested, defense counsel objected to the prosecution's request to give CALCRIM No. 362 on consciousness of guilt. The court replied:
"It was, I think, the Prosecution's theory that the court ought to give this instruction in light of the defendant's initial statement to the detective here that he didn't know anything about a shooting. And I think I understood your argument to be well, that may not have, in fact, been a false or misleading statement relative to this idea that the shooting or shoot-out versus whatever the appropriate Spanish interpretation is."
Defense counsel argued the instruction gave "undue weight to that particular statement." The court replied:
"It seems to me whatever the appropriate interpretation to that evidence the jury is free to draw the conclusion if they think it's appropriate that that was a false and misleading statement. And then this instruction tells them how to evaluate it in those circumstances. So it's the court's view it's a correct statement of the law and there is some evidence to support giving it."
In closing argument, the prosecutor argued that defendant denied being involved in a shooting, cited the jury to CALCRIM No. 362, and asserted the jury could draw an inference of guilt from his denials. "[A] reasonable person would not lie about their involvement if they truly acted in self-defense. And the law allows you to consider that under [CALCRIM No.] 362."
C. Analysis
Defendant claims there was no evidence that he made a false statement to support the court's decision to give CALCRIM No. 362, because defendant clarified to the detectives that he misunderstood their initial questions about a shooting and thought they were asking about a shoot-out. Defendant further argues it was impossible for the jury to determine whether he gave a false statement because of the Spanish/English translation, and the jury never watched the videotape to evaluate his voice and demeanor.
CALCRIM No. 362 is the successor to CALJIC No. 2.03. (People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.) Both instructions on "consciousness of guilt" have been repeatedly upheld against "various and sundry attacks." (Id. at p. 1103, fn. 3; see People v. Page (2008) 44 Cal.4th 1, 50-52; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Arias (1996) 13 Cal.4th 92, 143; People v. Kelly (1992) 1 Cal.4th 495, 531-532.)
The consciousness of guilt instruction should be given "when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendant's pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendant's testimony at trial.... When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper method to analyze the testimony." (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104; People v. Kimble (1988) 44 Cal.3d 480, 498; People v. Williams (1995) 33 Cal.App.4th 467, 478.)
Defendant relies on People v. Wright (1988) 45 Cal.3d 1126 (Wright), and argues CALCRIM No. 362 is an improper pinpoint instruction, because it erroneously focuses the jury's attention on the testimony of a single witness and invites the jury to be cautious about defendant's false and misleading statements. However, Wright did not address CALCRIM No. 362, CALJIC No. 2.03, an instruction on defendant's consciousness of guilt, or any other pattern instruction. Instead, Wright discussed why the trial court in that case properly refused to give the jury a special defense instruction which addressed a particular evidentiary issue. (Wright, supra, 45 Cal.3d at p. 1135, fn. 6.)
In contrast to defendant's reliance on Wright, the California Supreme Court has repeatedly held that CALJIC No. 2.03 is not an improper pinpoint instruction. (People v. Arias, supra, 13 Cal.4th at p. 143; People v. Kelly, supra, 1 Cal.4th at pp. 531-532.)
"In Wright, we explained and limited the circumstances in which a defendant is entitled to a 'pinpoint' instruction. [Citation.] Defendant contends that CALJIC No. 2.03 is in effect a pinpoint instruction favorable to the prosecution, and it is no longer appropriate under the Wright analysis. [¶ ] CALJIC No. 2.03, however, does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.] … If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error." (People v. Kelly, supra, 1 Cal.4th at pp. 531-532, italics in original.)
"Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362… , none is sufficient to undermine our Supreme Court's approval of the language of these instructions. Crucially, CALCRIM No. 362 contains nearly identical language to that relied on in Kelly: '[E]vidence that the defendant made such a statement cannot prove guilt by itself.' [Citation.] Thus, like CALJIC No. 2.03, CALCRIM No. 362 is not an unlawful 'pinpoint' instruction. [Citation.]" (People v. McGowan, supra, 160 Cal.App.4th at p. 1104.)
Defendant also contends that CALCRIM No. 362 should not have been given because there is no evidence that he made any false or misleading statements during his postarrest interview with the detectives. Defendant cites the portion of the interview when he told the detectives that he misunderstood their initial question about a shooting, and he thought they meant a shoot-out. As explained ante, defendant admitted to the detectives that he was in the taxi cab but repeatedly denied that a shooting happened. He only admitted that a shooting occurred when the detectives told him they knew the time, date, and location of the shooting. CALCRIM No. 362 was properly given in this case because "[c]ontrary to defendant's claim, the jury could quite reasonably conclude that defendant made a series of false statements to deflect suspicion from himself. [Citation.]" (People v. Howard (2008) 42 Cal.4th 1000, 1025.)
As for the interview itself, the court repeatedly gave both the prosecutor and defense counsel the option to play the videotape of the interview to the jury, if the videotape tracked the redacted transcript and omitted the audio portion, to avoid jurors from having their own conflicting interpretations of the Spanish/English translation. The court's concerns about the audio portion and translation were reasonable under the circumstances, but it was still willing to allow the jury to watch defendant's demeanor during portions of the interview. However, defense counsel indicated his agreement with the translated transcript and never asked to show the video portion of the interview to the jury.
As to defendant's main point, however, the jury heard Detective Toscano's testimony about defendant's interview and his attempt to explain why he initially denied knowing anything about a shooting—that defendant claimed he did not understand the detectives' original question and thought they were asking about a shoot-out. The court modified CALCRIM No. 362 in this case to instruct the jury that "[i]f you find that the defendant made a false or misleading statement relating to the charged crime knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime ...." (Italics added.) The jury was thus instructed to determine in the first instance whether defendant even made a false or misleading statement, which thus allowed the jury to consider whether defendant's explanation to the detectives was reasonable and that he was not making false or misleading statements when he repeatedly denied knowing anything about a shooting.
The court's decision to give CALCRIM No. 362 in this case was reasonable and supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR:
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Wiseman, Acting P.J.
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Detjen, J.