Opinion
B160084.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. MARCUS D. WINZER, Defendant and Appellant.
Law Office of Carol K. Lysaght and Carol K. Lysaght, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Michelle J. Pirozzi, and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant Marcus D. Winzer of two counts of making terrorist threats. (Pen. Code, § 422.) The trial court sentenced appellant to a total term of nine years in state prison based
All further statutory references are to the Penal Code unless otherwise indicated.
upon a prior conviction that qualified both as a "strike" and a serious felony enhancement. (& sect; 667, subds. (a), (b)-(i).)
Appellant raises issues involving the admission and exclusion of evidence and the validity of a jury instruction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant made the terrorist threat simultaneously against two victims. Appellant had a volatile relationship with a woman, Parrish Harvey (Parrish). Parrishs adult daughter, Mercedes Hernandez (Mercedes), lived with her. On December 2, 2001, appellant was at their home having a loud argument with Parrish, who told him he could no longer be there and must leave. Appellant said to Parrish that if she tried to leave him, "I will smoke you and your daughter." At the time he made this statement appellant gestured toward a shiny object in his waistband that Parrish believed was a gun. Mercedes saw the argument, heard the statement that included her as the daughter, and was frightened.
As detailed in the discussion sections, post, the following issues arose at trial:
Parrish was not a witness at trial. Mercedes testified at trial about observing the incident and being frightened, but she did not remember at trial the words used by appellant. Appellants specific threat was proved by prior statements Parrish and Mercedes made to a police officer several hours after the incident, which the trial court admitted into evidence under the spontaneous statement exception to hearsay. (Evid. Code, § 1240.) Appellant challenges this ruling.
Appellant challenges the trial courts admission into evidence of a prior court restraining order that appellant stay away from Parrish.
Appellant challenges trial court rulings that excluded evidence offered by appellant to impeach prosecution witnesses and hearsay declarants, by way of prior acts involving moral turpitude. Appellant contends the court erred in excluding evidence that: (1) on prior occasions Parrish assaulted her husband when he would not give her money, and used force to take money from a store clerk who worked with her husband; (2) on a prior occasion Mercedes was involved in a carjacking; and (3) on a prior occasion a prosecution witness, Pauline Harvey (Pauline), Parrishs mother, lied to a police officer then accused the officer of lying.
Finally, appellant contends the jury instruction given regarding prior acts of domestic violence (CALJIC No. 2.50.02 (2000 rev.)) does not adequately describe the burden of proof.
SPONTANEOUS STATEMENT
During trial the court held a hearing under Evidence Code section 402 at which Los Angeles Police Officer Michael Dickson testified: He went to Parrish and Mercedess home to interview them about the incident. He arrived approximately 4:40 p.m.; the incident had occurred approximately 11:00 a.m. He spoke separately to Parrish and Mercedes. "Both appeared visibly upset, emotionally upset, almost to the point of shaking, fearful." Parrish "appeared to be almost shaking. Her eyes were wide as if she was just emotionally upset." Mercedes "looked angry and afraid. There was anger in her voice that she couldnt believe what had happened. And she definitely appeared to be afraid also." They described to him the threats appellant made.
Appellants trial counsel argued the five and one-half hour interval between the incident and the statements gave the victims opportunity to reflect and deprived the statements of the spontaneity necessary for admission of the evidence. The prosecutor argued the officers observations about the declarants behaviors showed the statements were spontaneous despite the time interval.
The trial court held the evidence admissible, commenting: "There is no particular time limit. . . . Its a factor to be considered by the court, but its not dispositive. Obviously the greater the period of time, the less likely the person is to be under the stress of the exciting event. And I think the court does have to give some deference to the experienced officer who was questioning the individuals as to his observations. He does find them to be visibly upset and shaking . . . and he did find them to be fearful based upon the event that had occurred."
Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [P] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [P] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
The trial courts discretion to admit or exclude evidence under this section is "at its broadest when it determines whether the nervous excitement still dominated and the reflective powers were still in abeyance." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590-591.) Lapse of time is not determinative, if the circumstances support the conclusion the statements were made unreflectively while under the stress of excitement of the event. (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234-1235 [two days after a murder, the child witness, in an agitated state of emotion after defendants departure, revealed details to a confidant]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [two days after the event, the child victim revealed sexual molestation when the irritated area was accidentally touched, causing the child to reexperience the pain of the event].) Here, from the officers description of the declarants behaviors and appearance when they made their statements within five and one-half hours of the event, the trial court could reasonably conclude the statements were reliable, unreflective, and spontaneous descriptions of appellants conduct. The trial court did not abuse its discretion, even though it might also have been within its discretion had it excluded the evidence.
This conclusion is not negated by the trial courts finding on a different item of evidence prior to trial. The prosecution had also sought admission of Parrishs taped 911 call to police as a spontaneous statement. Based solely on its listening to the tape, the court excluded it with the comment that, "Its got to be one of the calmest 911 tapes I think I have heard. . . . I cant say from what I hear on the tape the court can make a finding that she is under the distress of the excitement of the event. Shes reporting something that happened, but it doesnt appear to me that shes under the stress of that event. And the bulk of it actually . . . is not talking about the event[, which is required under Evidence Code section 1240.]" This does not preclude the subsequent finding on different facts that when the police arrived for an interview, the declarants relived the experience and recounted it unreflectively while under the stress of the original exciting event. This involved a different occasion and the additional evidence of the officers observations of the declarants demeanors.
Even if the trial court should have disregarded Parrishs later statement based on his conclusion that her prior 911 call was not a spontaneous statement, the court could, however, find that the statement of Mercedes to Officer Dickson was admissible under Evidence Code section 1240. Mercedes did not make any prior statement, and there is no evidence that she was not under stress and excitement based on threats made by appellant. Appellants threats were thus proved by Mercedess spontaneous statement, independent of the statement attributed to Parrish. There is, therefore, no reasonable probability the outcome would have been more favorable to appellant had Parrishs statement been excluded. (Evid. Code, § 353, subd. (b).)
Therefore, the trial court did not err in admitting evidence pursuant to Evidence Code section 1240. The proper admission of evidence under this well-established hearsay exception does not violate a defendants federal constitutional right to confrontation. (People v. Hughey (1987) 194 Cal. App. 3d 1383, 1389-1394, 240 Cal. Rptr. 269.)
RESTRAINING ORDER FOR PRIOR DOMESTIC VIOLENCE
The trial court admitted evidence, about which appellant does not specifically complain, of a prior incident of domestic violence between appellant and Parrish in January 2001, in which appellant threw Parrish to the floor. This was admissible, both pursuant to Evidence Code section 1109 (prior incidents of domestic violence admissible), and to show the victims fear, an element of the charged crime under section 422. (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.)
Following the prior incident, Parrish obtained a restraining order requiring appellant to stay away from her. The prosecution requested the court to take judicial notice of it. The prosecutor argued the existence of the prior order tended to show Parrishs fear of appellant as to the charged crime, which was a violation of the order. (See People v. Allen (1995) 33 Cal.App.4th 1149, 1155, 1156.) The court, in the presence of the jury, took judicial notice of the existence of a restraining order issued January 8, 2001, requiring appellant to stay away from Parrish and her residence. But later the prosecution moved that the order itself also be admitted in evidence. Appellants trial counsel objected it was unnecessary, cumulative, and prejudicial to admit the order itself in addition to the judicial notice taken in the jurys presence. After satisfying itself that the orders wording contained nothing unduly prejudicial, the court overruled that objection.
Appellant now contends the trial court abused its discretion under Evidence Code section 352 by admitting into evidence the restraining order itself. This argument is unpersuasive. The prior incident and the resulting restraining order were probative on the issue of the victims fear, an element of the charged crime. The court had taken judicial notice of the order in the jurys presence. We cannot say that additionally introducing the order itself was prejudicial in the sense used in Evidence Code section 352. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214, 892 P.2d 1199.) The trial court considered the potential prejudicial effect and did not clearly abuse its discretion by overruling appellants objection under Evidence Code section 352. (See People v. Williams (1997) 16 Cal.4th 153, 213, 940 P.2d 710; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 885 P.2d 1.)
EXCLUSION OF PRIOR CONDUCT FOR IMPEACHMENT
Legal Background
Appellant contends the trial court abused its discretion by preventing him from impeaching prosecution witnesses or hearsay declarants with prior incidents of conduct involving moral turpitude.
Although prior instances of a witnesss misconduct are generally inadmissible under the terms of Evidence Code section 787, this statutory restriction does not apply in criminal cases. Under the "truth in evidence" section of the California Constitution (art. I, § 28, subd. (d)), all relevant evidence is admissible in criminal cases. (People v. Harris (1989) 47 Cal.3d 1047, 1081, 255 Cal. Rptr. 352, 767 P.2d 619.) Evidence of a witnesss prior misconduct that involves moral turpitude and hence might suggest a willingness to lie is admissible. (People v. Wheeler (1992) 4 Cal.4th 284, 295, 841 P.2d 938.)
However, although "relevant" and prima facie admissible, such evidence is subject to exclusion in the trial courts discretion under Evidence Code section 352. "The latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler, supra, 4 Cal.4th at p. 296.) The prospect of introducing evidence of witnesses prior acts of misconduct raises serious problems of proof, unfair surprise, fairness, and efficiency, as well as complicated questions of what is moral turpitude. (Id. at p. 297, fn. 7.) Accordingly, courts are admonished to "consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297.)
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
A defendants federal constitutional right to confront witnesses is not violated by discretionary restrictions on cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431; People v. Jennings (1991) 53 Cal.3d 334, 372, 279 Cal. Rptr. 780, 807 P.2d 1009; People v. Frye (1998) 18 Cal.4th 894, 946, 959 P.2d 183.)
With these principles in mind we examine each ruling challenged by appellant.
Parrish
Prior to trial, appellant offered the following evidence to impeach Parrish. Parrishs husband, Jan Hanoun, testified at the pretrial hearing that: about a year and a half prior to trial, when Hanoun worked at a liquor store and was married to Parrish, she sometimes came to the store and asked him for money. One time when he refused to give her money, she tried to choke him, she scratched his neck, and she broke his gold chain necklace. Another time, Hanoun was at home when he received a telephone call from the liquor store. It was Parrish, asking for money. Hanoun replied that since he was not there, the liquor business was not his, and the clerk who was there worked for the business, she could not take money from the store. She replied, "I will take the money." He told her not to, and he hung up. A minute later the store clerk called Hanoun and said Parrish was behind the counter trying to take money from the register. Parrish got on the line, and Hanoun again told her not to take money. She said, "I will take the money," and then she dropped the phone and Hanoun heard sounds like fighting. Within half an hour Hanoun went to the store and observed the store clerk had scratches on his neck. The clerk told Hanoun that Parrish hit him and took money.
As discussed ante, Parrish did not testify at trial. Her statements to a police officer describing appellants threats were admitted under the hearsay exception for spontaneous statements. Evidence to attack the credibility of a hearsay declarant is admissible if it would have been admissible had the declarant testified at trial. (Evid. Code, § 1202.)
The trial court stated it was not inclined to allow this evidence to impeach Parrish, because (1) the physical attack on Hanoun was merely an incident of domestic violence not involving moral turpitude, and (2) assuming the second incident suggested a robbery involving moral turpitude, the evidence of it was hearsay and confusing and would be very confusing for the jury.
The court stated any character trait of Parrish for violence was not relevant to the charged crimes.
Mercedes
During trial appellants counsel offered to impeach Mercedes as follows: Juvenile court records showed Mercedes had a prior arrest as a juvenile for "false information to a police officer as well as prostitution." She was also "arrested with several other people for car-jacking." The prosecutor objected that the juvenile records were not themselves admissible, and that defense counsel would need to produce a live witness to the actual conduct. The prosecutor stated that defense counsel had no witness that Mercedes was criminally involved in a carjacking, only an officer who could state Mercedes was present in the carjacked vehicle. Appellants counsel replied the officer would testify that Mercedes was in the carjacked car after hot pursuit immediately following the carjacking and therefore it was inferable she "was obviously [a] part of it." The court stated the juvenile records were not admissible, and that counsel would need direct evidence of Mercedess involvement, not mere presence, in the carjacking. Later at trial, counsel expanded his offer of proof, stating that a police officer could testify Mercedes "was immediately behind the guy with the knife who carjacked the person" and could testify "that he observed Mercedes . . . with the — aiding and abetting these people who carjacked this person." The prosecutor clarified, "the victim of the carjack is not available. Only [the officer] would be testifying to hearsay." The court stated its prior ruling was unchanged.
The fact of conviction of a felony is admissible to impeach a witness. (Evid. Code, § 788.) But other criminal records are inadmissible hearsay to prove the underlying criminal conduct. (People v. Wheeler, supra, 4 Cal.4th 284, 297-298.)
See People v. Wheeler, supra, 4 Cal.4th at pages 297, footnote 7, and 300, footnote 14.
Pauline
During cross-examination of Pauline, defense counsel offered to impeach her credibility as follows: On a prior occasion Pauline made a complaint to a police officer, who took a report; but when Pauline was called to court, she "said it never happened, that [the] officer should be arrested for lying." The trial court ruled, "were not going to waste a lot of time on this collateral issue." In a motion for mistrial counsel later asserted the officer "will be willing to testify as to what he observed not so much for the truth of the matter asserted, but whether, in fact, it did occur." Pauline "did testify under oath [that the investigating officer] should have been arrested for falsifying a police report." The prosecutor replied counsel had yet to make an offer of proof how Pauline lied or perjured herself. Counsel replied that the officer would testify that he was present in court when Pauline testified that the officer was a liar who wrote a false police report. He argued, "either she made a false police report or [the officer] made a false police report. I think the jury should be given the opportunity to decide who, in fact, is lying and who is telling the truth. And it goes to their veracity and honesty, and it also goes to her ability to testify truthfully."
The court stated, "Now, we have the issue whether she did, in fact, lie on the stand when she did testify [in the other prior proceeding]. And it seems to me that were really dealing — if thats the case — with what [is the officers opinion] based upon what [Pauline] presumably told him earlier. Im not sure that really demonstrates moral turpitude sufficiently under Wheeler. We get into that problem of then having to evaluate the relative credibility of [the officer] regarding that prior incident, and the witness, and determine whether or not there is even perjury at that time." Defense counsel interrupted he was not seeking to prove perjury, only that Pauline made conflicting statements. The court replied, "But it is only relevant if it is a prior act of moral turpitude, which you maintain is perjury. The only way the jury can make the determination it was perjury is if they believe that she did, in fact, say something different to [the officer] when she made her complaint. This is a classic example of what 352 is meant to prevent. So, again, my ruling yesterday is not altered in terms of the consumption of time that this would take, and the rather lengthy relevance [sic]."
Discussion
In each instance appellants trial counsel sought to impeach the witness on a collateral matter on the reasoning that misconduct by the witness, unrelated to this charged incident but involving moral turpitude, might warrant an inference against her credibility. We conclude the trial court did not abuse its broad discretion under Wheeler to exclude this evidence on grounds its probative value was outweighed by a substantial danger of confusion of the issues and undue consumption of time. (People v. Wheeler, supra , 4 Cal.4th at pp. 296-297; People v. Jennings, supra, 53 Cal.3d 334, 372; People v. Ayala (2000) 23 Cal.4th 225, 301.) Whether Parrish had previously been involved in taking money from her husbands employer or assaulting her husband, whether Mercedes had previously been under suspicion for carjacking, and whether Pauline had previously made inconsistent statements about a report to a police officer, had only marginal probative value to rebut the credibility of Parrishs and Mercedess statements of the threats made by appellant in the charged crimes, or the credibility of Paulines testimony that the victims were affected by the threats and appellant had engaged in prior domestic violence against Parrish.
The probative value of impeachment on such collateral matters is weaker than the value of evidence of specific bias of the witness, as involved in the federal cases cited by appellant. (Delaware v. Van Arsdall, supra, 475 U.S. 673, 679 [confrontation right denied by refusal to permit cross-examination that the prosecution had dismissed a criminal charge against the witness in exchange for his cooperation]; Davis v. Alaska (1974) 415 U.S. 308, 316, 39 L. Ed. 2d 347, 94 S. Ct. 1105 [confrontation right denied by refusal to permit cross-examination that the witness was on juvenile probation, with a possible motive to divert attention from himself by accusing defendant of possession of stolen property].)
Not only were the prior incidents relatively weak in probative value, they also involved problems of proof.
As to Parrishs "robbery" of the liquor store, the crucial evidence that Parrish actually took money from the cash register was hearsay: Hanouns testimony that the clerk told Hanoun that Parrish took the money. Counsels offer of proof did not include the store clerk as a witness, nor did Hanouns account compel a conclusion the clerks statements were admissible under the spontaneous statement exception to hearsay.
As to Mercedess involvement in carjacking, appellants trial counsel did not contradict the prosecutors characterization that the defense would not produce the carjacking victim as a witness and that the police officers "knowledge" of Mercedess criminal involvement as an aider and abettor was only hearsay.
As to Pauline, as the trial court observed, mere evidence that Pauline stated in prior testimony that a police officer filed a false report is not sufficient to show that Pauline committed a crime of moral turpitude. To evaluate whether Pauline either made a false complaint to police or committed perjury by denying she made a report would require evidence of the underlying circumstances. The trial court could reasonably conclude this involved dangers of undue consumption of time and confusion of the issues.
Thus, in some cases appellant could not produce admissible evidence of the alleged prior misconduct, and in any event the court could reasonably conclude the probative value of the evidence was outweighed by dangers of confusion of issues and undue consumption of time. The trial court did not abuse its discretion under Evidence Code section 352, nor did exclusion of this collateral impeachment evidence deny appellant a constitutional right to confront the witnesses or present a defense.
CALJIC NO. 2.50.02
As noted, ante, the court admitted into evidence, pursuant to Evidence Code section 1109, a prior incident of domestic violence between appellant and Parish. The court instructed the jury on the use of this evidence, in the language of CALJIC No. 2.50.02 (2000 rev.), in part as follows: "If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit another offense involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime for which he is accused. However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. The weight and significance, if any, are for you to decide."
Appellant contends, "Telling a jury that prior domestic violence proved by a preponderance of the evidence is not sufficient to prove the present offense beyond a reasonable doubt implies by way of a negative pregnant that prior domestic violence proved beyond a reasonable doubt is sufficient to prove the present offense beyond a reasonable doubt. Thus, a jury reading this paragraph could reasonably interpret the language to permit it to find the defendant guilty of the charged offense based on prior acts if the prior acts are proved beyond a reasonable doubt. Therefore, the instruction improperly authorized the jury to find appellant guilty of the charged crimes solely on the basis of his propensity toward domestic violence."
This precise argument was rejected in People v. Reliford (2003) 29 Cal.4th 1007, 1015, with respect to the substantially identical instruction (CALJIC No. 2.50.01 (1999 rev.)) on the use of evidence of prior sexual offenses under Evidence Code section 1108. The court held that no juror would reasonably interpret this instruction to authorize conviction of a charged offense based solely on proof of an uncharged offense. (Ibid.)
Reliford was decided shortly after appellants opening brief was filed.
Appellant also contends the instruction "implies that the prosecution can meet its burden of proving appellant guilty of the charged offenses by introducing evidence of prior domestic violence proved by a preponderance of the evidence, in conjunction with other circumstances proved only by a preponderance of the evidence." This argument was also rejected in Reliford. "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior [offense]. The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt." (People v. Reliford, supra, 29 Cal.4th at pp. 1015-1016.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, J. and HASTINGS, J.