Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA083703, James B. Pierce, Judge.
Suzann E. Papagoda, 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, Blythe J. Leszkay and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Janice White appeals from the judgment entered following a jury trial that resulted in her conviction for robbery. White was sentenced to a term of three years in prison. White contends the trial court prejudicially erred by excluding the testimony of five defense witnesses. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s case.
On the evening of September 28, 2009, Laura Smith visited Ward’s Pharmacy in Long Beach to purchase a vitamin supplement. Several years earlier Smith had been injured in an automobile accident, and as a result she used a motorized wheelchair, or “scooter.” She was able to walk short distances with the use of a cane. The accident had adversely affected her memory.
Just before Smith entered the pharmacy, appellant White approached and asked Smith whether she had a sister named Debra. Smith, who did not know White, responded affirmatively. The two women chatted as they entered Ward’s. Inside the store, Smith made her purchase. White asked Smith if she could borrow $3. Smith, who felt sorry for White, gave White $3 from her pocket. White made a purchase. White did not ask to borrow $50; if she had done so, Smith would have declined to loan her the cash as money was “very tight.” Smith told White she was headed to a nearby Denny’s Restaurant to celebrate her 62nd birthday. White stated that she would walk to the restaurant with Smith.
Smith and White entered Denny’s together, with Smith using her wheelchair. White asked the manager, Alma Bucio, where the restroom was located. Both Smith and White entered the restroom. Once inside, White demanded, “ ‘Give me your money.’ ” Smith protested that she had none. White pulled out a light-colored gun and pointed it at Smith, stating that she had seen her get change at the pharmacy. Smith gave White $53, all the money she had, because she did not wish to be shot. White threw a bag containing her Ward’s purchases––aspirin and candy––at Smith, and quickly left the bathroom and restaurant. Bucio, the manager, saw White rapidly depart.
Smith intended to follow White but had difficulty maneuvering her wheelchair in the restroom. Bucio heard the wheelchair beeping and bumping into walls, and went to investigate. Smith appeared frightened and nervous, but stated that everything was okay. Smith exited the restroom on foot, walked outside the restaurant, and then returned to the bathroom, where her wheelchair remained in a stall. Smith asked Bucio if she had seen a woman run from the restaurant. Bucio confirmed she had observed a woman walk out rapidly. Smith told Bucio that the woman had robbed her. At Bucio’s suggestion, Smith returned to Ward’s, where an employee telephoned police.
Surveillance tapes from Ward’s and Denny’s corroborated Smith’s account and were played for the jury. The parties stipulated that in 1995, Smith had been convicted of misdemeanor forgery.
b. Defense case.
White, who was 46 years old, testified in her own behalf. On the date in question she went to Ward’s Pharmacy to purchase medication. White saw doctors in the Long Beach area and had had prescriptions filled at Ward’s Pharmacy. As she was entering Ward’s, Smith approached and stated that she wanted to purchase a “muscle relaxer” or oxycontin. White told Smith she did not sell such items. White helped Smith into the store. White told Smith that she needed to return home to Fresno, but was “ ‘a little short of money’ ” because she had been robbed on September 8. Smith asked how much money White needed. White asked whether she could borrow $50 until she returned from Fresno. Smith agreed, but insisted that White pay her back. White agreed to repay her on the first of the month, when she received her check in the mail. Smith then handed White $50 in cash and told her to meet her at the “Radio Shack by the doughnut shop” to repay the loan. White intended to return on the 2nd, but Smith stated there was “no rush” and White could repay the loan when she returned to Long Beach for a medical appointment on October 22. White then purchased some aspirin and “turtle candy.” She did not get a prescription filled because the pharmacy did not have the medication in stock.
The women exited Ward’s. Both Smith and White needed to use the restroom and went to Denny’s for that purpose. In the bathroom, Smith again asked about “muscle relaxers” and asked if she could have the bag containing White’s purchases from Ward’s. White gave her the bag and left the bathroom to catch the Greyhound bus to Fresno. White denied robbing Smith, pointing a gun at her, or possessing a gun. White testified that she was afraid of guns and did not like violence.
During the year preceding the incident, White had spoken to Smith several times outside a nearby doughnut shop, by a liquor store, or at a local doctor’s office, when White was “giving witness like the pamphlets.” White did not know Smith’s name, address, phone number, or email. The two women were not friends. However, Smith told White, “ ‘I know you because people know you in the area.’ ” Smith declined to provide her address or phone number to White when White asked.
2. Procedure.
Trial was by jury. White was convicted of second degree robbery (Pen. Code, § 211). The jury deadlocked on the allegation that White personally used a firearm (§ 12022.53, subd. (b)), and that allegation was dismissed in furtherance of justice (§ 1385). The trial court sentenced White to a term of three years in prison. It imposed a restitution fine and a suspended parole restitution fine, a court security fee, and a court construction fee. It also ordered White to pay $50 in victim restitution. White appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
The trial court did not prejudicially err by excluding the testimony of various defense witnesses.
Prior to trial, the trial court excluded the testimony of five defense witnesses, primarily on relevance and Evidence Code section 352 grounds. The trial court also excluded evidence of White’s religious activities, including that White was a “street preacher” who handed out pamphlets. White contends this was prejudicial error. We disagree.
The trial court initially stated its intent to exclude the testimony of three of the witnesses because the defense had failed to provide sufficient information to the prosecutor regarding the nature of their testimony. The prosecutor suggested that defense counsel be allowed to provide the People with witness statements, at which point the issue could be revisited. Ultimately the testimony was excluded on substantive grounds, rather than as a discovery sanction.
1. Applicable legal principles.
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Lee (2011) 51 Cal.4th 620, 642; People v. Mills (2010) 48 Cal.4th 158, 193; People v. Williams (2008) 43 Cal.4th 584, 633-634.) “Even if relevant, evidence may be excluded in the trial court’s discretion ‘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.’ [Citation.]” (People v. Lee, supra, at p. 643.) A trial court has broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Mills, supra, at p. 195; People v. Williams, supra, at p. 634.) We apply the abuse of discretion standard to a trial court’s rulings on the admissibility of evidence, including those turning on the relevance or probative value of the evidence in question. (People v. Lee, supra, at p. 643; People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Harris (2005) 37 Cal.4th 310, 337.) The ruling will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Hartsch (2010) 49 Cal.4th 472, 497.)
2. Application here.
a. Proposed testimony of Detective Romero.
The defense sought to introduce the testimony of a detective by the name of Romero, regarding his use of a ruse to speak to White regarding the charged crime. According to defense counsel’s offer of proof, Detective Romero would have testified that White had been the victim of an unrelated robbery a “couple of weeks” prior to the Smith robbery. Romero requested that White travel from Fresno to meet with him, ostensibly to discuss the robbery in which she had been a victim. She agreed. In fact, Romero actually wished to talk to White about the Smith robbery. The trial court excluded the evidence as irrelevant.
White contends that evidence she voluntarily travelled to Long Beach, at her own expense, to meet with the detective would have shown she had “nothing to fear” from police. According to White, this “critical” testimony would have bolstered her credibility. We discern no error. People v. Cowan (2010) 50 Cal.4th 401, is instructive. Cowan found a trial court did not abuse its discretion by excluding a defendant’s proposed “ ‘consciousness of innocence’ ” evidence. (Id. at p. 472, italics omitted.) In Cowan, the defendant sought to introduce evidence he had offered to speak with a detective regarding two charged murders to show he lacked consciousness of guilt. The court explained: “consciousness of innocence evidence, such as defendant’s offer here, although relevant, properly may be excluded on the ground that its slight probative value is outweighed by the risk of confusing the issues. [Citation.] Indeed, there are numerous plausible reasons why a guilty person might offer to talk to the police. [Citation.]... He may desire to appear innocent, or he may desire to lie to the police to deflect suspicion from himself or to present a false alibi. Against such slight probative value, the risk of confusing the issues or of delaying the trial is strong, since if the evidence were admitted, the prosecution would have to be given the opportunity to explain the circumstances surrounding the defendant’s offer and to present evidence negating an inference of innocence.” (Id. at p. 473.)
In the instant case, the evidence lacked even the slight probative value that existed in Cowan. Because White did not agree to talk to police about a robbery in which she was a suspect, but instead agreed to be interviewed about an unrelated robbery in which she was a victim, any inference of consciousness of innocence was attenuated at best. Evidence that she was the victim of an unrelated robbery, and the circumstances of her arrest and interview with the detective, would likely have confused the issues and consumed significant trial time. Given the minimal probative value of the evidence and the likelihood of confusing the issues, the trial court properly excluded the evidence. (People v. Cowan, supra, 50 Cal.4th at p. 473.)
b. Proposed testimony of Doctor Jonathan Nguyen.
Defense counsel represented that Dr. Jonathan Nguyen, White’s treating physician, would testify that White received Social Security disability benefits, had medical conditions, and took prescription medications. The trial court found the proposed testimony irrelevant and excluded it under Evidence Code section 352. The trial court suggested that the defense sought to admit evidence of White’s medical conditions in order to garner sympathy from the jury.
White posits that evidence she received Social Security disability payments was relevant to show she had the means to repay Smith’s purported loan. We disagree. Evidence White was a Social Security recipient was largely irrelevant unless Smith was aware of White’s Social Security benefits. Evidence that Smith believed White had the financial means to repay her might have been marginally relevant; jurors might have found it more plausible that Smith loaned White money if she knew White would be able to repay her. But neither Nguyen nor any of the proposed witnesses could have testified to Smith’s knowledge of White’s finances, or lack thereof.
White also contends evidence she suffered from undisclosed medical conditions was relevant to dispel the impression given by the prosecution that she was a “strong person preying on the weak.’’ White points out that at sentencing the trial court characterized the crime as especially atrocious, given the victim’s vulnerability. Had the jury known that White also had medical issues, White theorizes, there would have been a “level playing field.” Further, White hypothesizes that the jury might have inferred Smith was more likely to loan money to a fellow sufferer from medical disabilities.
Apart from the fact that these rationales were for the most part not articulated below, they lack merit. To the extent the jury inferred White preyed upon a vulnerable victim, this impression was primarily due to the facts that White was 16 years younger than Smith, and was not forced to use a wheelchair. Although the record does not reveal the nature of White’s purported disabilities, the circumstance that she suffered from one or more medical conditions could not have obviated the facts she was younger and more mobile than her victim. As to White’s second point, even assuming arguendo that jurors would make the questionable inference suggested (i.e., that Smith would be more likely to lend money to another person if that person suffered from a disability), jurors could not have done so here because there was no evidence Smith knew White suffered from medical conditions. Dr. Nguyen could not have testified to Smith’s knowledge of White’s medical history. Thus, evidence White suffered from medical conditions had minimal or no probative value. Such evidence could, however, have clouded the issues by engendering sympathy for appellant, confusing the jurors and distracting them from the question of White’s guilt of the charged crime. (Cf. People v. Edelbacher (1989) 47 Cal.3d 983, 1016.)
Next, White posits that Dr. Nguyen’s testimony that she took prescription medications would have established a legitimate reason for her presence at the pharmacy. But the reason for her presence at the pharmacy was not a significant issue at trial, and it was undisputed that she was there to attempt to fill a prescription or purchase items. Alternatively, she contends that the fact she obtained prescriptions from Ward’s suggested she was known to the pharmacy staff; therefore, she would not have committed a robbery down the street of a woman with whom she had just been seen at the pharmacy. We agree that that evidence establishing she routinely had prescriptions filled at Ward’s, and was well known to the pharmacy staff, might have had some limited probative value in this regard. However, defense counsel’s offer of proof did not demonstrate that Dr. Nguyen’s testimony would have established the pharmacy staff’s familiarity with White. Counsel averred that Nguyen would testify White “takes prescription medication, ... that’s why she’d be going to a pharmacy.” Counsel did not, for example, aver that the doctor would testify to the number of times White personally filled prescriptions at Ward’s, or which employees interacted with her. Nguyen’s mere testimony that he had prescribed medications for White would have done little to establish that the particular persons working at the pharmacy on September 28, 2009, recognized White on sight. The trial court did not abuse its discretion by excluding the evidence.
c. Proposed testimony of John Tenner.
The defense sought to call John Tenner to testify that White received Social Security payments, took medications, sometimes lived in Fresno, and was afraid of guns. The trial court excluded the gun evidence as hearsay, and the remaining evidence as lacking in probative value under Evidence Code section 352.
The defense also sought to introduce Tenner’s testimony that White was “a religious person.” We discuss this aspect of Tenner’s proposed testimony post.
As we have already discussed in regard to the proposed testimony of Dr. Nguyen, evidence that White received Social Security payments and took medication was irrelevant and properly excluded.
Evidence that White lived in Fresno some of the time was nothing more than undisputed background information. Tenner’s testimony on the point thus lacked probative value and would have unnecessarily consumed time. Contrary to White’s argument, the fact she sometimes lived in Fresno did nothing to explain why she was in the Long Beach area, and in any event the reason for her presence in Long Beach was not a significant issue at trial.
We agree with White that evidence she was frightened of guns potentially had probative value on the question of whether she used a gun to commit the robbery. White argues that the trial court erroneously concluded Tenner’s testimony on this point was hearsay, because her statements that she was afraid of guns could have come in under Evidence Code section 1250 as evidence of her state of mind. She also points out that Tenner’s observations of her non-verbal reactions to a gun would not have amounted to hearsay. The People, on the other hand, argue that appellant failed to advance the Evidence Code section 1250 theory below, and admission under the state of mind exception was improper in any event. But we need not reach these arguments, because the jury deadlocked on the firearm use charge, which was dismissed as a result. As testimony White was afraid of guns went only to this issue, White cannot have suffered prejudice from exclusion of the testimony under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defense counsel stated Tenner would testify White “has given him the signs that she wants nothing to do with guns, doesn’t want to be around them....” Counsel did not further elucidate the nature of Tenner’s testimony.
d. Proposed testimony of Luvia Carmona.
Next, the defense sought to call Luvia Carmona. Carmona would have testified that she worked in a doughnut shop near Ward’s and Denny’s, and she had seen a woman in a wheelchair in the doughnut shop once every two weeks. Carmona did not know the woman’s name, and had never seen her visit the shop with another woman. The trial court excluded this testimony as irrelevant.
The trial court did not err. The fact the victim occasionally patronized a neighborhood doughnut shop was not germane to any issue at trial, and was properly excluded. Contrary to White’s argument on appeal, counsel did not represent below that Carmona would testify White “street-witnessed near the doughnut shop on a frequent basis.” Carmona’s proposed testimony thus would not have established Smith’s familiarity with White as a “well-known... preacher” in the neighborhood. Despite White’s attempt to make the link, we do not see the correlation between the victim’s occasional visits to a local doughnut shop, unaccompanied by White, and the likelihood that the victim would have been inclined to loan White money.
e. Proposed testimony of appellant’s sister and evidence of religious activities.
Finally, the defense sought to have Sandra White, appellant’s sister, testify that appellant attended church, sometimes travelled to Fresno on a bus, and was a street preacher. The defense also sought to have Tenner testify that White was “a religious person.” The trial court excluded Sandra’s proposed testimony, as well as testimony about White’s religious activities, as irrelevant.
For ease of reference, we sometimes hereinafter refer to Sandra White by her first name.
Again, we discern no error. As discussed in regard to the proposed testimony of witness Tenner, evidence about White’s travels between Long Beach and Fresno lacked any probative value and was properly excluded. (Evid. Code, § 350.)
Evidence that White attended church and was a “religious person” likewise had no relevance to any issue, but was apparently offered to suggest White’s religious views would have precluded her from committing robbery. However, under Evidence Code section 789, evidence of religious beliefs, or lack thereof, “is inadmissible to attack or support the credibility of a witness.” (Evid. Code, § 789; People v. Bautista (2008) 163 Cal.App.4th 762, 785.)
White argues, correctly, that evidence of religious activities may be admissible when offered for purposes other than attacking or bolstering credibility. (See People v. King (2010) 183 Cal.App.4th 1281, 1312; People v. Bautista, supra, 163 Cal.App.4th at p. 785.) White urges that here, evidence she was a “street preacher” who regularly handed out pamphlets in the area was relevant to establish she was a well-known figure in the community. From that fact, White draws the inference that Smith, who admittedly did not know White’s name, address, or telephone number, would have been more likely to loan White money. We see two problems with this theory. First, the notion that Smith would be more likely to loan money to a stranger simply because the stranger was known to be a street preacher who handed out pamphlets in the area is both highly speculative and not particularly persuasive. White neither offered nor presented evidence establishing that Smith had a special affinity for, or reason to trust, pamphleteers. Second, and most problematic, none of the witnesses proposed by the defense could have offered any evidence that Smith had ever seen White engaged in her preaching activities. Without such evidence, White’s theory was entirely speculative. “Evidence is irrelevant... if it leads only to speculative inferences.” (People v. Morrison (2004) 34 Cal.4th 698, 711.) On the other hand, introduction of the proposed evidence would likely have consumed considerable time and confused the issues, especially if, in rebuttal, the People found it necessary to explore the timing, frequency, and nature of White’s preaching activities. Under these circumstances, we conclude the trial court did not err.
f. The trial court’s rulings did not preclude White from offering a defense; there was no cumulative error.
White urges that the trial court’s rulings infringed upon her federal constitutional right to present a defense. She is incorrect. As we have explained, the probative value of the excluded evidence, if any, was so attenuated that it was properly excluded under Evidence Code section 352. The exclusion of irrelevant or tangential evidence does not offend the Sixth Amendment. “A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, “determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (Cornwell, at p. 82; see also People v. Ayala (2000) 23 Cal.4th 225, 301.)
Nor does the cumulative effect of the purported errors require reversal, as urged by White. As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial, ’ ” we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.