People v. Smith CA4/1 ( 2015 )

Filed 11/20/15 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067220
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245756)
JOSHUA SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura H.
Parsky, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Joshua Smith of corporal injury to a spouse, assault by means
likely to produce great bodily injury, false imprisonment by violence, and resisting or
delaying a peace officer. The trial court suspended imposition of sentence for three years
and placed defendant on formal probation, but also ordered that defendant serve 365 days
in local custody. Defendant contends the trial court erred by excluding impeachment and
character evidence regarding the victim and one of the arresting officers. He further
contends the prosecutor engaged in misconduct by indirectly commenting on defendant's
election not to testify. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
The charges against defendant arose from a domestic violence incident that
involved his then-wife, Tanika Lee, on January 17, 2013. The trial court allowed Lee to
testify under Evidence Code section 1109 regarding prior instances of domestic violence
involving defendant.1 Defendant does not challenge the trial court's admission of those
prior instances.
1 Unspecified statutory references are to the Evidence Code.
Section 1109, subdivision (a)(1) provides: "Except as provided in subdivision (e)
or (f), in a criminal action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant's commission of other domestic violence is
not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to
Section 352."
2
Prior Instances
Lee and defendant met in Redding, California, and dated for about two years
before marrying in 2012. Their dating relationship was "rocky" and defendant became
violent with Lee on several occasions. The first four or five instances involved defendant
pushing and shoving Lee and hitting her in the back. When she discussed the possibility
of calling the police, he told her he hit her in the back " 'on purpose so that there's no
marks.'. . . So there's nothing [she] can do about it." Lee did not call the police because
she thought it would be an "over-dramatic response."
On another occasion when Lee and defendant were arguing, he kicked her in the
stomach and chest, knocking the wind out of her.
Another time defendant was "reckless[ly]" kicking in Lee's direction, "[thinking]
he was being funny," when he kicked Lee in the face, leaving "a pretty good bruise all
around [her] mouth."
During one argument in Lee's house in Redding, she told defendant to leave, but
he refused. He laid on the bed and pressed his foot against Lee's throat, pinning her
against the wall. At some point during this argument, Lee threw a glass jar at defendant,
striking him and causing the jar to break. Lee had not consumed alcohol that day and
could not remember whether defendant had. She could not remember whether she threw
the jar before or after defendant began being physical with her on this occasion; if she
threw it first, this was the only occasion on which she initiated physical violence during
an argument with defendant.
3
When Lee and defendant planned to move to San Diego, they visited and stayed in
a hotel while looking for apartments. During an argument at the hotel, defendant grabbed
Lee by the shoulders, threw her down on the floor, then grabbed her throat and applied
pressure. Neither had been drinking alcohol. Lee did not call the police because she was
embarrassed and did not know anybody in San Diego.
After Lee agreed to marry defendant, their relationship improved and the violence
stopped. They moved to San Diego early in 2012 and married at the courthouse in
August. They shared a two-bedroom apartment with another couple, Rachel Cusing and
Michael Van Dyck.
Two days after the wedding, Lee, defendant, and their roommates were swimming
at a friend's pool. Lee and the roommates were casually drinking cocktails by the pool,
but defendant "was really drinking," as if something had upset him. After defendant
disappeared for awhile, Van Dyck found him face down on the grass next to Lee's car; he
had broken off the side mirror. They all returned to the apartment, where defendant
became sick. Lee encouraged him to stay in the bathroom so he would not make a mess,
but defendant resisted. He grabbed her throat with both hands; pushed her to the ground;
straddled and strangled her; placed his knee on her throat; and hit her face six times. Lee
testified defendant stopped when Van Dyck knocked on the bedroom door.2 Lee crawled
into bed and fell asleep.
2 Van Dyck testified he did not knock on the door during the incident, but described
Lee's appearance the following day as "look[ing] beat up"—she had "black eyes" and
4
The next morning, Lee's face was "completely black and blue" and swollen; she
"couldn't tell where [her] chin began and [her] neck ended." She also had trouble
swallowing and closing her jaw completely. Lee was scheduled to work that day, but
knew it would be obvious to everyone what had happened to her. She called her
supervisor and "made up some horrible story" about not being able to work because her
son had been hurt.3 Lee worried she would lose her job because she would not be able to
return to work for a while. She ultimately left that job as a result of the incident, but
found a new job a few months later.
There was no "memorable" violence between defendant and Lee between the
August 2012 incident and January 2013. By then, however, their relationship was
"exceptionally strained."
The January 17 Incident
On January 17, 2013, Lee worked a half-day at her new job. She unsuccessfully
tried to reach defendant throughout the morning to tell him that someone she met through
work might be interested in buying one of the puppies he was selling. She went home
after lunch and watched a movie in the living room while Van Dyck prepared dinner in
the kitchen for his girlfriend. Lee testified she drank one Coors Light with Van Dyck, but
"bruises everywhere"—and she was "having trouble walking." He did not see the bruises
on Lee the night before.
3 Lee's supervisor corroborated this.
5
explained there were other beer cans and bottles in the living room from when defendant
and Van Dyck drank together.4
Defendant arrived home, walked past Lee in the living room without saying a
word, and entered the bedroom and shut the door. Lee was irritated with defendant
because he had not gotten back to her about selling the puppy. A while later, Lee went to
the bedroom to get her phone charger. The door was locked, which caused Lee to
become concerned she would be unable to get ready for work the next morning. When
she knocked on the door, defendant let her in, and went back to bed. Based on the way
defendant jerked the door open and his other movements and mannerisms, Lee believed
he was drunk and irritable.
Lee pulled the covers off the bed and told defendant to leave the room; she usually
slept in the bedroom and defendant usually slept on the couch in the living room.
Defendant leapt off the bed toward Lee. She tried to leave the room, but defendant
grabbed her by the back of her clothing and pulled her back in. He then shoved Lee to
the ground and stomped on her legs. Defendant moved between Lee and the bedroom
door, put his arm around her neck in a chokehold, and began squeezing her neck tighter
and tighter. Defendant wrapped his other hand around Lee's face as if he was going to
snap her neck. Lee testified she did not know if she lost consciousness. She used her
4 Van Dyck testified he did not know how many beers Lee drank, but he thought she
was drunk because she slurred when she spoke to him in the kitchen. However, Van
Dyck said Lee was not slurring when he heard her on the phone 10 to 20 minutes later.
6
hands to pull defendant's hand away from her face and struggled to free herself.
Defendant let her go and she stumbled into the living room.
Defendant pushed Lee into the couch. They both looked at Lee's cell phone. Lee
grabbed it first and ran for the front door; defendant grabbed her arm, but she got away.
Lee called 911 and reluctantly reported defendant had pushed and hit her, and "jumped
up and down on [her] throat."5 Lee told the operator she did not need paramedics.
Van Dyck testified that after he heard Lee knocking on the bedroom door, he
heard a loud crash that sounded like a television or something metal had fallen in the
living room. Van Dyck walked to the living room to investigate, but everything looked
okay. He went back to the kitchen and resumed cooking until he left the house 10
minutes later. When he went to his car, he saw Lee crying and calling the police on her
cell phone.
San Diego Police Officer Gilbert Lorenzo responded to Lee's 911 call and found
her crying in the alleyway behind her apartment. He interviewed her inside the
apartment. Lee told Lorenzo defendant had jumped up and down on her, but did not
mention anything about strangling. Lorenzo testified Lee did not appear to be under the
influence of alcohol; he recorded that observation on a special domestic violence report
form.
Another police officer had already detained defendant. Officer John Call
transported defendant in a patrol vehicle from the front of the apartment building to the
5 The jury heard a recording of Lee's 911 call.
7
rear alleyway so that he could transfer defendant to Officer Lorenzo's vehicle. As Call
placed defendant in his patrol car, defendant began screaming that he was being falsely
accused. Call drove around to the back of the apartment and waited in the alleyway for
Lorenzo, who was still inside speaking with Lee. Once Lorenzo returned to the alleyway,
Call attempted to move defendant from his vehicle to Lorenzo's. When Call opened the
door of his car, defendant "kicked the door really hard open and tried to get out." Call
pushed defendant back into the vehicle. The next time Call removed defendant from the
vehicle, defendant lunged forward; Call pushed defendant against the vehicle. Defendant
struggled against Call, jerked back and forth, screamed, and was uncooperative. Lorenzo
grabbed defendant's arm to help Call calm him. Defendant told the officers, "take these
[handcuffs] off and I'll beat you guys' ass." Call and Lorenzo placed defendant face
down on the ground, and he became compliant. Defendant smelled strongly of alcohol.
The day after the incident, Lee went to the Family Justice Center, where she spoke
with domestic violence detectives Kevin McNamara and Silvia Vella. She did not tell
them defendant strangled her because she was embarrassed.6 Vella confronted Lee about
injuries on her neck and behind her ear and asked if anything had been placed around her
6 Detective McNamara, who had over 27 years of experience with the San Diego
Police Department, testified it is very common for domestic violence victims to minimize
what happened. He thought Lee was doing so during the January 18 interview,
particularly regarding strangulation.
8
neck.7 Lee cried, but did not answer. Vella took photographs of the bruises on Lee's
body. Lee testified all the bruising was caused by defendant on January 17.
Lee returned to the Family Justice Center on January 22 and spoke to Detective
Vella again. Vella took more photographs, which depicted more bruising and broken
blood vessels on Lee's arm, chest, neck, jaw, and behind her ear. The coloring of some of
the bruises suggested to Vella that the bruises were a few days old.
Lee was admitted to the hospital on January 23. She was given a CT scan of her
neck and treated with muscle relaxers and pain medication; she received a prescription
for a blood thinner as a precaution. She was released the next day. The day after that,
she moved back to Northern California. Lee and defendant later divorced.
The Defense Case
Defendant did not testify.
Juan Arevalo testified he worked in a pet store and knew defendant because they
previously traded animals. Arevalo stated Lee came into the pet store on January 19 and
told him about the January 17 incident. Arevalo testified he did not see any bruises on
Lee;8 Lee smoked three cigarettes in a short time; Lee appeared intoxicated because her
eyes were red and "heavy"; and Lee picked up a 55-pound bag of dog food with ease.
7 Detective Vella, who had over 24 years of experience with the San Diego Police
Department, testified regarding her extensive training and experience in identifying signs
of strangulation. She further testified bruises on Lee's chest, neck, and behind her ear were
consistent with strangulation with someone's hands (as opposed to with a ligature).
8 On cross-examination, Arevalo acknowledged seeing bruises on Lee in the
photographs that were taken on January 18.
9
Rodney Erwin testified he had known defendant for about six years and Lee for
three or four. Around January 19, Lee met with Erwin and told him about defendant's
arrest. Erwin did not see any bruising on Lee, but acknowledged she said her neck and
back were sore. He asked to see Lee's bruises, but she did not want to lift her shirt to
show him.
Emily Brassieur testified she dated defendant's brother when Lee and defendant
lived in Northern California. Brassieur said Lee stopped by her house after work one day
and showed bruises on her hands, which Lee told her were caused by punching
defendant. On cross-examination, Brassieur acknowledged she and Lee were only casual
friends and admitted defendant slept with one of Brassieur's good friends when Lee and
defendant's relationship was "on and off."
The Prosecution Rebuttal Case
In rebuttal, Lee testified she never (1) discussed her and defendant's relationship
with Brassieur, (2) showed bruises on her hands to Brassieur, or (3) hit defendant.
Jury Verdict and Sentencing
The jury found defendant guilty of corporal injury to a spouse (Pen. Code, § 273.5,
subd. (a)), assault by means likely to produce great bodily injury (Pen. Code, § 245, subd.
(a)(4)), false imprisonment by violence (Pen. Code, §§ 236 & 237, subd. (a)), and
resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)).
The trial court suspended imposition of sentence for three years and placed
defendant on formal probation. The court also ordered that defendant serve 365 days in
local custody.
10
DISCUSSION
I. Exclusion of Evidence of Lee's "Bad Character"
Defendant contends the trial court erred by excluding evidence of Lee's conduct
involving alcohol and drugs on occasions other than on January 17 and during the past
incidents admitted under section 1109.
A. Relevant Trial Court Proceedings
Defendant and the People filed competing motions in limine regarding the
admissibility of evidence showing Lee (1) was convicted of misdemeanor driving under
the influence (DUI) in 2011; (2) was arrested for (but not charged with) DUI in February
2013; (3) lied to a police officer during her February 2013 arrest, and (4) used drugs and
tested positive for opiates when she checked into the hospital on January 23.
Defendant's trial counsel argued the DUI conviction and arrest were admissible to
(1) establish Lee had a propensity for becoming intoxicated and, therefore, likely was
intoxicated on January 17; and (2) impeach Lee because "DUI [is] specifically admissible
as a crime of moral turpitude . . . ."9 The trial court disagreed, finding Lee's DUI
conviction inadmissible because it was not a felony conviction, and "to the extent that it
reflects some moral turpitude," the court balanced the section 352 factors and found the
evidence's probative value was substantially outweighed by the prejudicial effect and the
"risk of sidelining the jury into an issue that is not the focus of this case and this trial."
9 Defendant's original trial counsel, who withdrew before trial due to a conflict of
interest, made only the propensity argument. He acknowledged "[i]t would be silly" to
seek to introduce the DUI evidence for "honesty and veracity."
11
The court applied the same section 352 analysis to the February 2013 DUI arrest. The
court clarified, however, that it was "not excluding evidence of whether [Lee] was under
the influence of alcohol at the time of the incident in this case. That is certainly fair
game."
Defense counsel argued he should be allowed to cross-examine Lee regarding
whether she made false statements to police during her 2013 DUI arrest. Defense
counsel read from the police report,10 which apparently stated Lee denied being involved
in an accident, did not know where she was, and claimed to have had a passenger in the
vehicle even though the investigating officer believed that was not true. The trial court
excluded the evidence under section 352, explaining: "It isn't clear to the court based on
the proffer that that was a calculated lie to law enforcement or whether she was asleep
and passed out and so out of it that she didn't know where she was and didn't realize or
remember that there had been a collision, and we would get into all of those issues if we
opened the door to that in this trial. And those are completely irrelevant to the case and
would sidetrack the jury."
Finally, the People moved in limine to exclude evidence of Lee's prior drug use
"unless there is evidence presented that shows she was using drugs in this incident or if
drug use contributed to her injuries." Lee admitted during the preliminary hearing that
she snorted cocaine with defendant in the past. During argument on the motions in
limine, defense counsel stated he did not "plan on introducing any sort of drug use in the
10 The police report is not in the appellate record.
12
past, especially anything regarding snorting a line of cocaine," but noted Lee tested
positive for opiates when she was admitted to the hospital on January 23 and he intended
to ask her about that. The prosecutor noted the absence of any expert opinion indicating
the results of Lee's January 23 drug test suggest she was under the influence of any drug
on January 17. The court ruled that it would "not preclude the defense from asking [Lee]
whether she had used any type of controlled substance on the date of the offense," but
excluded the test results under section 352 absent "any further showing that they
indicated she used drugs on January 17."
B. Relevant Legal Principles
"A witness may be impeached with any prior conduct involving moral turpitude
whether or not it resulted in a felony conviction, subject to the trial court's exercise of
discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856,
931.) "[T]he admissibility of any past misconduct for impeachment is limited at the
outset by the relevance requirement of moral turpitude. Beyond this, 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 (1992) 4 Cal.4th 284,
296 (Wheeler), fn. omitted.) Additionally, "impeachment evidence other than felony
convictions entails problems of proof, unfair surprise, and moral turpitude evaluation
which felony convictions do not present. Hence, courts may and should 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.)
13
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as
necessary to deal with the great variety of factual situations in which the issue arises'
[citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion."
(Clark, at p. 932.)
"Evidence of a witness's drug use is inadmissible unless the testimony 'tends to
show that the witness was under the influence thereof either (1) while testifying, or (2)
when the facts to which he testified occurred, or (3) that his mental faculties were
impaired by the use of such narcotics.' " (People v. Panah (2005) 35 Cal.4th 395, 478.)
"[T]he court is not required to admit evidence, such as cocaine or marijuana use, 'that
merely makes the victim of a crime look bad.' " (People v. Hillhouse (2002) 27 Cal.4th
469, 496.)
Although character evidence is generally inadmissible, "[i]n a criminal action,
evidence of the character . . . of the victim of the crime for which the defendant is being
prosecuted is not made inadmissible . . . 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).) For example, a defendant charged with a violent
crime may introduce evidence of the victim's violent character to support a self-defense
claim. (See People v. Fuiava (2012) 53 Cal.4th 622, 698-699 (Fuiava).)
"[A] state court's application of ordinary rules of evidence—including the rule
stated in Evidence Code section 352—generally does not infringe upon" a defendant's
"general right to offer a defense through the testimony of his or her witnesses." (People
v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in People v. Doolin
14
(2009) 45 Cal.4th 390, 421, fn. 22; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103
["Although completely excluding evidence of an accused's defense theoretically could
rise to [the level of impermissibly infringing on a defendant's right to present a defense],
excluding defense evidence on a minor or subsidiary point does not impair an accused's
due process right to present a defense."].)
C. Analysis
We find no abuse of discretion in the trial court's exclusion of evidence regarding
Lee's conduct involving alcohol and drugs. Significantly, the court did not exclude
evidence or preclude cross-examination that would have established Lee was using
alcohol or drugs on January 17 or during any of the prior instances admitted under
section 1109.
We are not persuaded Lee's 2011 misdemeanor DUI conviction and 2013 arrest
reflect moral turpitude. Our Supreme Court concluded in the context of attorney
disciplinary proceedings that "[c]onvictions for drunk driving . . . do not per se establish
moral turpitude." (In re Kelley (1990) 52 Cal.3d 487, 492, 494 [second DUI conviction
while still on probation for first conviction did not reflect moral turpitude]; see In re Carr
(1988) 46 Cal.3d 1089, 1090-1091 [attorney pleading no contest to two separate counts
of DUI did not reflect moral turpitude].) Defendant's reliance on People v. Forster
(1994) 29 Cal.App.4th 1746 is misplaced. The defendant in that case suffered three prior
felony DUI convictions and was on trial for a fourth alleged violation. (Id. at p. 1757.)
The Forster court distinguished In re Carr on the basis "it involved misdemeanor driving
under the influence, not the felony driving under the influence with three prior
15
convictions of driving under the influence." (Forster, at p. 1757.) Lee's single
misdemeanor conviction in 2011 and arrest in 2013 are more akin to the conduct in In re
Kelley and In re Carr than to the highly recidivist felony conduct in Forster.
Accordingly, we conclude the trial court did not abuse its discretion in finding Lee's DUI
conviction and arrest were not instances of moral turpitude for impeachment purposes.
We also find no abuse of discretion in the trial court's alternative ruling excluding
Lee's DUI conviction and arrest under section 352. The court was properly concerned
with the "risk of sidelining the jury into an issue that is not the focus of this case and this
trial." Lee's conviction two years before the incident and arrest one month later have
little probative value regarding whether Lee was intoxicated on January 17, compared to
their consumption of time and risk of prejudice. This is particularly true of Lee's arrest,
which has the added problems of proof not applicable to convictions. (Wheeler, supra, 4
Cal.4th at pp. 296-297; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 (Lopez)
["evidence of mere arrests is inadmissible because it is more prejudicial than probative"],
italics added.)
We similarly find no error in the trial court's exclusion of evidence that Lee may
have lied to police during her 2013 arrest. The record does not make clear whether Lee
deliberately misled police or was simply disoriented. Given this uncertainty, the court
did not err in declining to "sidetrack the jury" on this ambiguous and collateral issue that
would have required its own mini-trial.
Finally, we conclude the trial court did not abuse its discretion in excluding
evidence Lee tested positive for opiates six days after the incident. As the court
16
observed, defendant offered no evidence indicating the positive test results established
Lee was under the influence on January 17. Defendant's argument that it shows she was
under the influence when she first reported the strangulation is unavailing because that is
not one of the recognized circumstances in which a witness's drug use is admissible. (See
People v. Panah, supra, 35 Cal.4th at p. 478.) Nor are we persuaded it should be
admissible under the circumstances here—defendant made no offer of proof about Lee's
opiate levels on the date of the incident and the impact it would have had on her ability to
accurately report the strangulation. Defendant was fully permitted to cross-examine Lee
about her drug use on the day of the incident and about the prior incidents admitted under
section 1109.
Defendant's "attempt to inflate garden-variety evidentiary questions into
constitutional ones is unpersuasive." (People v. Boyette (2002) 29 Cal.4th 381, 427
(Boyette).) The trial court's rulings did not prevent defendant from vigorously attempting
to impeach Lee. To the contrary, defendant's appellate brief acknowledges he argued
below that Lee (1) fabricated the domestic violence incident because she felt animosity
toward defendant; (2) lacked credibility because she did not report the strangulation to
police on the day of the incident or the day after, but rather, waited nearly one week; and
(3) lacked credibility about the amount of beer she drank the day of the incident. On this
record, defendant's claims of evidentiary error do not implicate his constitutional rights.
Even if we were to conclude the trial court erred, we would find no prejudice.
"Absent fundamental unfairness, state law error in admitting evidence is subject to the
traditional [People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask
17
whether it is reasonably probable the verdict would have been more favorable to the
defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439.) "As a
general rule, 'evidence which merely impeaches a witness is not significant enough to
make a different result probable . . . .' " (People v. Green (1982) 130 Cal.App.3d 1, 11.)
In addition to Lee's testimony regarding the January 17 incident, the jury (1) heard
Lee's testimony regarding prior incidents of domestic violence, which was corroborated
in part by Lee's former supervisor and Van Dyck; (2) heard a recording of Lee's 911 call
wherein she reported defendant "jumped up and down on [her] throat" (italics added);
(3) heard Van Dyck's testimony that he heard a crashing noise during the time Lee said
the incident occurred; (4) saw photographs depicting bruises on Lee, which Van Dyck
testified were not there before the incident; (5) heard Detective Vella's testimony that
Lee's injuries were consistent with strangulation, the bruising pattern was consistent with
manual strangulation as opposed to use of a ligature, and the coloration of the bruising on
January 22 indicated they were several days old; and (6) heard Detective McNamara's
testimony it is very common for domestic violence victims to minimize what happened to
them and that Lee appeared to be doing so regarding her strangulation. Based on the
totality of the evidence, it is not reasonably probable that exclusion of Lee's conduct
involving alcohol and drugs affected the verdict.
II. Exclusion of Officer Lorenzo's Domestic Violence Arrest
Defendant contends the trial court erred by excluding evidence showing Officer
Lorenzo was arrested for domestic violence. Defendant contends the evidence is relevant
and admissible (1) as general impeachment evidence because domestic violence is a
18
crime of moral turpitude (see People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402); and
(2) to show Lorenzo has a propensity toward violence such that defendant was entitled to
use self-defense against Lorenzo's alleged use of excessive force (see Lemelle v. Superior
Court (1978) 77 Cal.App.3d 148, 163 ["Evidence of an officer's tendency to violence . . .
is admissible in a prosecution in which the defendant is charged with battery on a peace
officer and resisting arrest."].)
A. Relevant Trial Court Proceedings
Before trial, defendant moved under Pitchess v. Superior Court (1974) 11 Cal.3d
531 to discover personnel information of Officers Call and Lorenzo regarding any
allegations of excessive use of force, dishonesty, or fabrication of evidence. The trial
court found no good cause to hold an in camera hearing because (among other reasons)
defendant did "not provide specific factual descriptions of the conduct of the officers"
regarding alleged use of excessive force. Defendant does not challenge this ruling on
appeal.
Defendant's original trial counsel contacted the prosecutor after he saw media
reports indicating Officer Lorenzo was arrested for domestic violence in April or May
2014. Lorenzo was arrested but never charged. The People advised defense counsel they
would not be disclosing material regarding the arrest under Brady v. Maryland (1963)
373 U.S. 83,11 and moved in limine to exclude it. Defendant argued he should be able to
11 Under Brady v. Maryland, supra, 373 U.S. 83, "the prosecution has a
constitutional duty to disclose to the defense material exculpatory evidence, including
potential impeaching evidence." (People v. Superior Court (Johnson) (2015) 61 Cal.4th
696, 709.)
19
review the arrest materials and cross-examine Lorenzo about them to support a self-
defense claim against the resisting arrest count.
The trial court directed the prosecutor to provide the arrest records for the court's
in camera review to determine whether Lorenzo's reported acts of domestic violence were
similar to defendant's excessive force claim. The prosecutor later reported he was still
working on gathering the documents and suggested he would consider limiting the
resisting arrest count to defendant's conduct with respect to Officer Call, thereby
rendering Lorenzo's character and conduct irrelevant. The trial court ruled it would
determine whether the evidence was relevant and whether it would review the evidence
in camera after it heard both officers' testimony.
During opening statement, the prosecutor referred to both officers when discussing
the resisting arrest count: "They're going to tell you that when they opened the door to
transport him from one of the vehicles to another police vehicle, that [defendant] pushed
the door open. He ran towards the police officer. He was resisting their efforts and
delaying them into trying to keep the peace and get him into custody."
Officer Lorenzo testified about a "scuffle" that initially involved only defendant
and Officer Call. Lorenzo saw defendant kick open the door of Call's vehicle and try to
exit, but Call pushed him back inside. As Lorenzo went to help Call, Call pulled
defendant out of the vehicle and defendant "was pretty much pulling away at Officer Call
during that point, and that's when [Lorenzo] put [his] hands on [defendant's] arms, kept
telling him to relax." When defendant continued struggling, both officers moved him to
the ground.
20
After Officer Lorenzo testified, the People and the trial court determined the
resisting arrest count would relate only to defendant's response to Officer Call before
Lorenzo placed his hands on defendant. The court indicated it would conduct an in
camera review of the documents relating to Lorenzo's arrest to determine whether they
should be disclosed to defendant.
After conducting the in camera review, the trial court excluded evidence of Officer
Lorenzo's alleged domestic violence. Applying section 352, the court reasoned that
because the People were limiting the resisting arrest count to defendant's conduct before
Lorenzo touched defendant, evidence of Lorenzo's character for violence had minimal
relevance, if any. By contrast, the trial court stated that introduction of the evidence
would constitute an "undue consumption of time on an extraneous matter and would
distract the jury with issues that are not the focal point of this trial." Specifically, because
Lorenzo was never charged or convicted, the trial court was concerned the evidence
"would result in a mini-trial over whether or not Officer Lorenzo, in fact, engaged in that
alleged conduct."
Later during trial, Officer Call testified defendant kicked the vehicle door open
and quickly exited, prompting Call to push him back inside. Call said Officer Lorenzo
came to help at that point and they got defendant out of the car again. When defendant
lunged toward the officers, Call pushed defendant back against the vehicle. Call stated he
was "fairly certain" he had his hands on defendant at that point, but was not sure Lorenzo
did or whether Lorenzo helped push defendant against the vehicle. Call thought he might
21
have been "crowding" Lorenzo out so that Lorenzo could not reach defendant. Both
officers then moved defendant to the ground.
The trial court instructed the jury that to find defendant guilty of resisting arrest, it
must find he resisted, obstructed, or delayed Officer Call by doing at least one of the
following: "one, kicking the patrol vehicle open; [¶] two, trying to get out of the patrol
car; [¶] three, lunging forward once out of the patrol car; [¶] and four, being
uncooperative as Officer Call held the defendant up against the patrol vehicle." (Italics
added.)
During closing argument, the prosecutor limited his argument regarding the
resisting arrest count to defendant's conduct toward Officer Call. Defense counsel
acknowledged in closing, "Okay. So they're relying solely on the actions of Officer Call
before Officer Lorenzo appears."
B. Analysis
We conclude the trial court did not abuse its discretion by excluding Officer
Lorenzo's arrest under section 352.
We have reviewed the sealed records the trial court reviewed in camera. These
records show the facts underlying Officer Lorenzo's arrest were highly disputed and
uncertain, implicating the problems of proof of which our Supreme Court has warned.
(See Wheeler, supra, 4 Cal.4th at pp. 296-297; see also Lopez, supra, 129 Cal.App.4th at
p. 1523.) Determining whether Lorenzo engaged in domestic violence would have
required an extensive mini-trial that might have exceeded the length of defendant's trial,
which consisted of only two days of testimony.
22
This substantial risk of undue time consumption outweighs the limited probative
value of Officer Lorenzo's arrest. Lorenzo's arrest had minimal relevance to support
defendant's self-defense claim to the resisting arrest count. First, the trial court accepted
the People's offer to limit the resisting arrest count to defendant's conduct before Lorenzo
ever touched defendant. Thus, Lorenzo's alleged subsequent use of excessive force is
irrelevant to a self-defense claim regarding defendant's prior conduct toward Officer Call.
(See People v. Hairston (2009) 174 Cal.App.4th 231, 238 ["A defendant can be convicted
under section 148 for each peace officer he obstructs, even if he engages in only one act
of obstruction."]; Yount v. City of Sacramento (2008) 43 Cal.4th 885, 899 (Yount) [where
defendant is lawfully arrested and resists arrest, " 'subsequent use of excessive force
would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness
of the criminal defendant's attempt to resist it' "].)
Second, contrary to defendant's concern that the prosecutor's opening statement
and the officers' testimony referenced defendant's conduct after Officer Lorenzo touched
defendant, the trial court specifically instructed the jury to limit its deliberations to
defendant's conduct toward Officer Call. We presume the jury followed this instruction.
(See People v. Yeoman (2003) 31 Cal.4th 93, 139.)
For the same reasons, we find no abuse of discretion in the trial court's exclusion
of Officer Lorenzo's arrest as impeachment evidence. Impeaching Lorenzo's testimony
would have served little purpose as it was nearly all corroborated by other witnesses or
physical evidence. His testimony about Lee's injuries was substantiated by Lee's
testimony, the detectives' testimony, and photographs. His testimony about defendant
23
resisting arrest was corroborated by Officer Call's testimony. And his testimony that Lee
did not appear intoxicated was corroborated by Van Dyck's testimony that Lee was not
slurring her speech when he saw her talking on the phone with police.12
Finally, for the same reasons discussed in part I.C., ante, we find unpersuasive
defendant's "attempt to inflate garden-variety evidentiary questions into constitutional
ones." (Boyette, supra, 29 Cal.4th at p. 427.)
III. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by indirectly
commenting on the fact defendant did not testify at trial. The People contend defendant
forfeited this issue by failing to object on this ground during trial, but also address the
merits of his claim. Defendant argues in reply that he did not forfeit the challenge, but
even if he did, the forfeiture is the result of ineffective assistance of counsel.
A. Relevant Trial Court Proceedings
During closing, the prosecutor argued: "And look what he did to her, ladies and
gentlemen. You don't have to be an expert to realize what he did to her. You've all fallen
off a bicycle or walked into a table. These are huge bruises. These are significant
injuries. And this was the second worse beating he ever gave her. She testified to that.
The worst day of her life was the event two days after their wedding when even Michael
12 During closing argument, the prosecutor argued, without objection, that the
recording of Lee's 911 call indicates she was not intoxicated. We are unable to verify this
claim because, although the transcript of the call is in the appellate record, the recording
is not.
24
Van Dyck told you she had welts on her face. And you have not been given one reason to
vote not guilty in this case." (Italics added.) Defense counsel did not object.
Moments later, the prosecutor argued: "And so I just have some ideas, things that
I thought just in considering—in weighing the evidence just before I wrap up this portion
of my closing argument. And again, I suggest that there's been no evidence presented to
you to the contrary to support any other version of the events that were given through the
evidence you heard in this case from these witnesses." (Italics added.) Defense counsel
did not object.
Defense counsel addressed these points in his closing argument: "So the
prosecution put on their closing argument before me earlier this morning. I just want to
let you know that the prosecution did try and misguide you as to what we needed to prove
in this case. We are the defense. We don't have to prove anything in this case. The
burden of proof is on the prosecution to prove each and every element of the charges
against Joshua Smith beyond a reasonable doubt. So we don't have to explain that there's
another scenario that occurred that resulted in the injuries in this case. All that matters is
that the prosecution—we hold them to that standard beyond a reasonable doubt and they
don't shift that burden to the defense. And it would be a complete fallacy for them to do
otherwise."
The trial court instructed the jury with CALCRIM No. 220 regarding the People's
burden of proof: "A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
[¶] . . . [¶] . . . In deciding whether the People have proved their case beyond a
25
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves the defendant guilty
beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty."
The trial court instructed the jury with CALCRIM No. 355 regarding defendant's
right not to testify: "A defendant has an absolute constitutional right not to testify. He or
she may rely on the state of the evidence and argue that the People have failed to prove
the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact
that the defendant did not testify. Do not discuss that fact during your deliberations or let
it influence your decision in any way."
The court also instructed the jury with CALCRIM No. 222 that "[n]othing that the
attorneys say is evidence. In their opening statements and closing arguments, the
attorneys discussed the case, but their remarks are not evidence."
B. Relevant Legal Principles
1. Prosecutorial Misconduct
" 'Under California law, a prosecutor commits reversible misconduct if he or she
makes use of "deceptive or reprehensible methods" when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.] Under the
federal Constitution, conduct by a prosecutor that does not result in the denial of the
defendant's specific constitutional rights—such as a comment upon the defendant's
invocation of the right to remain silent—but is otherwise worthy of condemnation, is not
26
a constitutional violation unless the challenged action " 'so infected the trial with
unfairness as to make the resulting conviction a denial of due process.' " [Citation.]' "
(Fuiava, supra, 53 Cal.4th at p. 679.) "A prosecutor's 'argument may be vigorous as long
as it is a fair comment on the evidence, which can include reasonable inferences or
deductions to be drawn therefrom.' " (People v. Edwards (2013) 57 Cal.4th 658, 736.)
Failing to object to misconduct and to request an admonition that the jury
disregard the misconduct forfeits the issue on appeal, unless an objection would have
been futile or an admonition ineffective. (People v. Tully (2012) 54 Cal.4th 952, 1049;
Fuiava, supra, 53 Cal.4th at p. 679.)
2. Griffin Error
In Griffin v. California (1965) 380 U.S. 609 (Griffin), the United States Supreme
Court held the Fifth Amendment forbids a prosecutor from commenting on a defendant's
election not to testify in his own defense. (Griffin, at p. 615.) " 'Griffin forbids either
direct or indirect comment upon the failure of the defendant to take the witness stand.' "
(People v. Hovey (1988) 44 Cal.3d 543, 572, italics added.) Thus, for example, "a
prosecutor may commit Griffin error if he or she argues to the jury that certain testimony
or evidence is uncontradicted, if such contradiction or denial could be provided only by
the defendant, who therefore would be required to take the witness stand." (People v.
Bradford (1997) 15 Cal.4th 1229, 1339.) "If, however, the evidence could have been
contradicted by witnesses other than the defendant, the prosecutor may without violating
defendant's privilege against self-incrimination describe the evidence as 'unrefuted' or
'uncontradicted.' " (People v. Johnson (1992) 3 Cal.4th 1183, 1229 (Johnson).)
27
Griffin does not "bar prosecution comments based upon the state of the evidence
or upon the failure of the defense to introduce material evidence or to call anticipated
witnesses." (Bradford, supra, 15 Cal.4th at p. 1339.) Thus, " ' "[a]s a general principle,
prosecutors may allude to the defense's failure to present exculpatory evidence"
[citation], and such commentary does not ordinarily violate Griffin or erroneously imply
that the defendant bears a burden of proof [citations].' " (People v. Mesa (2006) 144
Cal.App.4th 1000, 1006, fn. 2 (Mesa).)
3. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel under the Sixth
Amendment, a defendant bears the burden of showing: (1) trial counsel's performance
fell below an objective standard of reasonableness under prevailing professional norms;
and (2) the defendant suffered prejudice, that is, "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 692-694
(Strickland); People v. Hinton (2006) 37 Cal.4th 839, 876.)
In examining whether a defendant met his burden on the first prong, courts "must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v.
Hinton, supra, 37 Cal.4th at p. 876.) We will not find ineffective representation "unless
there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver
(2001) 26 Cal.4th 876, 926.) " 'Whether to object to inadmissible evidence is a tactical
decision; because trial counsel's tactical decisions are accorded substantial deference
28
[citations], failure to object seldom establishes counsel's incompetence.' " (People v.
Williams (1997) 16 Cal.4th 153, 215.)
"It is not sufficient to show the alleged errors may have had some conceivable
effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability'
that absent the errors the result would have been different." (Mesa, supra, 144
Cal.App.4th at p. 1008.) The Strickland " 'reasonable probability' standard applies to the
evaluation of a Sixth Amendment claim of ineffective assistance of counsel, even when
defense counsel's alleged error involves the failure to preserve the defendant's federal
constitutional rights." (Mesa, at pp. 1008-1009.)
C. Analysis
By failing to object to the prosecutor's alleged Griffin error, defendant forfeited his
prosecutorial misconduct challenge on appeal. (Mesa, supra, 144 Cal.App.4th at p.
1006.) "Nothing in the record suggests an objection by [defendant's] counsel would not
have been sustained and followed immediately by an admonition to the jury to disregard
the argument or that these remedies would not have cured any prejudice." (Id. at p.
1007.) The challenge is, therefore, forfeited.
We are not persuaded by defendant's claim that this forfeiture resulted from the
ineffective assistance of counsel. First, defense counsel did not object to the alleged
Griffin error; rather, he directly addressed it in his own closing argument. This suggests
the lack of objection was the product of a tactical decision rather than an error.
Second, defendant has not established he was prejudiced by the lack of objection.
The trial court instructed the jury regarding defendant's constitutional right not to testify,
29
that the jury must not draw any inferences from defendant's exercise of that right, that the
People bear the burden of proof beyond a reasonable doubt, and that counsel's arguments
are not evidence. Had the trial court sustained an objection on the basis of Griffin, the
court likely would have repeated these instructions. This "may have had some marginal
benefit" to defendant. (See Mesa, supra, 144 Cal.App.4th at p. 1011). However, based
on the evidence of defendant's guilt (discussed in part I.C., ante), the breadth of the
prosecutor's entire closing argument, and the limited nature of the prosecutor's alleged
indirect Griffin error, we are not convinced it is reasonably probable the jury would have
reached an outcome more favorable to defendant had his counsel objected. (See, e.g.,
Mesa, at p. 1011.)
In any event, even if we were to reach the merits, defendant would not have
persuaded us that the prosecutor committed Griffin error. The prosecutor's statements to
the jury at issue—"you have not been given one reason to vote not guilty in this case" and
"there's been no evidence presented to you to the contrary to support any other version of
the events that were given through the evidence you heard in this case from these
witnesses"—are substantially similar to language the California Supreme Court has found
does not run afoul of Griffin. In Bradford, the court held the prosecutor's comment that
"there is no evidence to the contrary" did not constitute Griffin error because the lack of
evidence might have been overcome with evidence other than the defendant's testimony.
(Bradford, supra, 15 Cal.4th at pp. 1338-1339.) In Johnson, the court found no Griffin
error where the prosecutor argued "[t]he uncontradicted evidence is that the defendant
was there, that the defendant did kill [one victim], that the defendant did shoot [another
30
victim]. That is uncontradicted." (Johnson, supra, 3 Cal.4th at p. 1229.) The Johnson
court reasoned that because the defense theory was that someone else committed the
crime, defendant could have contradicted the prosecution evidence with alibi witnesses.
(Ibid.)
Citing Bradford and Johnson, the court recently found no Griffin error in the
prosecutor's argument that " '[i]f the defense had a plausible, reasonable explanation why
the defendant was in the yard that morning, they would have given it. They haven't.' "
(People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525.) The Sanchez court found the
defendant could have contradicted the prosecution evidence with testimony of an
associate of the defendant who was nearby when police apprehended the defendant. (Id.
at pp. 1526-1527.)
Similarly here, defendant's testimony was not the only evidence that could have
contradicted the prosecution evidence regarding what happened on January 17. For
example, defense counsel argued during closing that "[a]s to [the strangulation], [t]he
prosecution's relying solely on Detective Vella's training and experience on strangulation
cases." Defendant could have contradicted Vella with an expert of his own to testify
Lee's bruises were not consistent with strangulation. Similarly, defendant could have
called a law enforcement expert to contradict Detective McNamara's testimony that
domestic violence victims commonly minimize what happened to them, as he opined Lee
was doing. Finally, defendant could (and did) attempt to contradict the People's account
of what happened by cross-examining Van Dyck about his observations that day. The
prosecutor's reference to "these witnesses" during one of the challenged portions of his
31
closing argument further demonstrates the People's case was not strictly the "he said, she
said" scenario defendant now contemplates. Therefore, even if defendant had not
forfeited his prosecutorial misconduct challenge by failing to object to the prosecutor's
alleged Griffin error, we would still affirm.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
32