People v. Bell CA2/1 ( 2020 )

Filed 9/4/20 P. v. Bell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B296533
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA462861)
v.
LENTON DWANE BELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Affirmed.
Eileen Manning-Villar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Lenton Dwane Bell was convicted of willfully
inflicting corporal injury resulting in a traumatic condition upon
someone with whom he had a dating relationship, in violation of
Penal Code section 273.5, subdivision (a).1 The trial court
sentenced Bell to the upper term of four years in state prison.
On appeal, Bell raises the following claims: (1) in imposing
the upper term, the court improperly relied upon certain
aggravating factors and ignored mitigating factors raised by his
trial counsel; and (2) the court committed prejudicial error by
excluding evidence that the victim had punched herself in the
head approximately one month prior to the incident at issue.
We conclude that Bell has not overcome the presumption
that the trial court properly exercised its broad discretion in
selecting the upper term. Further, except for a ruling sustaining
a hearsay objection (a ruling that Bell does not challenge), the
record does not show the trial court actually did bar Bell from
introducing evidence that the victim harmed herself on a prior
occasion. We thus affirm the judgment.
PROCEDURAL BACKGROUND
On February 22, 2019, the People filed an amended
information charging Bell with willfully inflicting corporal injury
resulting in a traumatic condition upon T.F., someone “with
whom [he] had a dating relationship,” in violation of
section 273.5, subdivision (a); forcible rape of T.F., as defined by
section 261, subdivision (a)(2); and attempted forcible oral
copulation with T.F., in violation of section 664 and former
1 Undesignated statutory citations are to the Penal Code.
2
section 288a, subdivision (c)(2)(A). Bell pleaded not guilty to each
count.
Prior to trial, the People filed a brief: (1) noting that at the
preliminary hearing, defense counsel had elicited testimony from
T.F. to the effect that she “had hit herself a month prior to the
instant matter”; and (2) moving to exclude “this self-harm line of
questioning absent a showing that the victim wrongfully accused
the defendant of this prior harm.” The People argued this
testimony constituted propensity evidence that is barred by
Evidence Code section 1101,2 and that it is not admissible habit
evidence under Evidence Code section 1105.3 The People sought
to “exclude this self-harm line of questioning absent a showing
that the victim wrongfully accused [Bell] of this prior harm.”
At a pretrial hearing, the trial court and the parties
addressed the People’s motion to exclude evidence that T.F. had
hit herself a month prior to the incident. The trial court asked
defense counsel to describe the “surrounding circumstances
regarding the hitting” and stated that this evidence would not
“have much probative value” and it would encounter “a 352
2 Evidence Code section 1101, subdivision (a) provides:
“Except as provided in this section and in Sections 1102, 1103,
1108, and 1109, evidence of a person’s character or a trait of his
or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.”
3 Evidence Code section 1105 provides: “Any otherwise
admissible evidence of habit or custom is admissible to prove
conduct on a specified occasion in conformity with the habit or
custom.”
3
issue”4 if the victim had not “frame[d] somebody” for hitting her.
When defense counsel indicated that he was unable to provide
much information concerning the circumstances of T.F.’s self-
hitting because he did not “explore that with her during cross-
examination” at the preliminary hearing, the trial court
expressed skepticism regarding the relevance of the evidence.
The trial court then asked defense counsel to obtain
witness statements regarding the victim’s self-hitting to make
sure “there’s a good faith basis for [admitting] it.” Defense
counsel simply responded, “Okay. Thank you,” and the hearing
concluded.
At the conclusion of the trial, the jury found Bell guilty of
willfully inflicting corporal injury resulting in a traumatic
condition upon T.F., but acquitted him of the other two offenses.
On March 8, 2019, the trial court sentenced Bell to the
upper term of four years in state prison. (See § 237.5, subd. (a)
[“Any person who willfully inflicts corporal injury resulting in a
traumatic condition upon a victim described in subdivision (b) is
guilty of a felony, and upon conviction thereof shall be punished
by imprisonment in the state prison for two, three, or four
years . . . .”].) The trial court reasoned: “There was a threat of
great bodily injury in this case, which is an aggravating factor.
[Bell’s] actions were demonstrative of a high degree of callousness
for the victim. The victim was particularly vulnerable during
4 Evidence Code section 352 provides: “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.”
4
this. So I don’t really see a lot of mitigating circumstances.” The
court further remarked that “[t]here were pretty serious injuries
to the victim, and [Bell’s] attitude after that was very callous. . . .
[T.F.] offered to get him [a vehicle from a business that provides
transportation services] and he demanded that she take him
[home], and he wanted to control the situation throughout.” The
court also observed that it did not “think [Bell] is remorseful.”
Bell thereafter timely appealed the judgment.
FACTUAL BACKGROUND
Below is a summary of the People’s and the defense’s
respective theories of the case.
1. The People’s Theory of the Case
Bell and T.F. are both recovering narcotics addicts. The
two began dating in August of 2016. “The relationship went well
for the first six months.” Several months into their relationship,
however, Bell resumed using crack cocaine.
On the morning of November 2, 2017, T.F. attempted to
end her relationship with Bell over the telephone because she
did not approve of his use of crack cocaine; T.F. suggested that he
date women who drink alcohol and use narcotics. Bell responded
by threatening to kill T.F. and himself. Notwithstanding this
threat, T.F. arranged to transport Bell to her residence to allow
him to retrieve certain personal belongings.
After they arrived at T.F.’s residence, T.F. told Bell to pack
up his belongings. Bell instead “acted like he wanted to hang out
there.” When Bell received a telephone call a short time later,
T.F. heard a woman’s voice through the speaker. T.F. was
jealous; she asked for the identity of the caller and tried to grab
5
the telephone from Bell. Bell laughed and attempted to keep his
telephone away from her.
At some point, Bell and T.F. moved to T.F.’s bedroom. Bell
began pulling T.F.’s pants and underwear down, and T.F.
resisted by telling Bell, “No!” She relented after Bell grabbed her
by the neck and pushed her against the wall. Bell pushed T.F.
onto the bed, removed his pants, and told her to suck his erect
penis, but T.F. refused to do so. T.F. felt something on her face,
but did not know if it was Bell’s penis. Bell forced T.F.’s legs
open and inserted his penis inside her for about five minutes
until he ejaculated; T.F. did not say anything or attempt to push
Bell off of her.
Bell and T.F. got dressed and went into T.F.’s living room.
Bell said to T.F., “ ‘So you think you’re big and bad. Over the
phone, you think you’re big and bad.’ ” Bell started striking T.F.
on her head, face, legs, and ribs. T.F. attempted to flee through
the front door, but Bell blocked it. As T.F. attempted to shield
herself from the blows by curling up into a ball, Bell kicked and
pushed her.
Bell stopped assaulting T.F. when he saw her eye begin to
swell. Bell then gave T.F. his telephone and told her she could
call the police, but T.F. declined to do so. Bell told T.F. that he
had to hit her because she previously drove away with his money
to prevent him from buying crack cocaine. Because T.F. saw that
Bell was offering a justification for hitting her, she feared that he
was going to hit her again and decided to appease him by
“playing nice.” When Bell asked her what she wanted to do, T.F.
suggested that Bell repair her front door, and he thereafter did
so.
6
T.F. later offered to arrange to have a transportation
service take Bell home, and Bell responded by pushing T.F.,
threatening her, and throwing “fake punches” at her. When T.F.
mentioned that some construction workers were nearby, Bell
replied that he did not “give a fuck about them” and that he was
going to “fuck [her] up anyway.” T.F. subsequently drove Bell
back to his apartment, and she reported this incident to the
police later that day.
2. The Defense’s Theory of the Case
On several occasions, T.F. had demonstrated that she was
jealous of other women Bell knew. For instance, T.F. had
accused Bell of looking at T.F.’s female psychologist “in a certain
way.” Furthermore, whenever Bell received a telephone call, T.F.
insisted on knowing the identity the caller. When Bell did not
wish to disclose the identity of a particular caller, he would try to
keep her away from his telephone. Additionally, during the early
morning hours of November 2, 2017, T.F. cursed at Bell and
threw a lamp at him when she discovered that a young woman
was with him at his apartment.5
Later that day, T.F. drove Bell to her residence. Once
there, Bell received a telephone call, and T.F. demanded to know
the identity of the caller. When Bell refused to provide this
information, they both fell on the couch and wrestled for the
telephone for at least one minute. T.F. obtained the telephone
and saw that a person named Tracy was the caller. The couple
had “ ‘play wrestled’ ” over the telephone on at least 10 previous
5 Similarly, T.F. admitted at trial that in September 2017,
she slapped Bell’s face after he had called her an idiot and
pushed her. She claimed that Bell retaliated by slapping her.
7
occasions, and T.F. had always succeeded in getting the
telephone. T.F. was physically stronger than Bell, and Bell
weighed approximately 130 pounds.
While at T.F.’s apartment, Bell later received another call,
and the pair wrestled again until T.F. obtained possession of his
telephone. Bell denied forcing T.F. down and trying to remove
her pants.
T.F. transported Bell back to his apartment and she stayed
there for about an hour. During that timeframe, Bell told her
that he wanted to end their relationship because he was tired of
T.F.’s use of Tarot cards, her insistence on going to séances, her
attempts to trick him into going to psychic readings, and her
walking out of church services. T.F. asked Bell if he was sure he
wanted to break up, and Bell confirmed that he was confident
about that decision. T.F. replied, “ ‘You’re going to regret it.’ ”
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in
Sentencing Bell to the Upper Term of Four Years’
Imprisonment
Bell contends “[t]he trial court erred when it sentenced
[him] to the upper term of four years in state prison[ ] because it
relied on improper aggravating factors” and failed to “give
appropriate weight to the mitigating circumstances presented
here.” With regard to his first contention, Bell argues the
trial court improperly relied upon the following aggravating
factors: (1) Bell exposed T.F. to a threat of great bodily harm;
(2) Bell acted with a high degree of callousness; and (3) T.F. was
particularly vulnerable.
8
We review Bell’s challenge to his sentence for abuse of
discretion. (§ 1170, subd. (b) [“When a judgment of imprisonment
is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound
discretion of the court.”]; People v. Lamb (1988) 206 Cal. App. 3d
397, 401 (Lamb) [“Generally, determination of the appropriate
term is within the trial court’s broad discretion [citation] and
must be affirmed unless there is a clear showing the sentence
choice was arbitrary or irrational [citation].”].) For the reasons
discussed below, we conclude that Bell fails to satisfy this
deferential standard.6
1. Threat of Great Bodily Harm
Bell argues the trial court abused its discretion in relying
upon this aggravating factor because “[s]ome violence and some
threat of great bodily injury are inherent in the offense itself”
(i.e., the violation of section 273.5, subdivision (a)); “[T.F.’s]
‘injuries did not require medical treatment nor was she
hospitalized’ ”; and “[t]he facts in some published section 273.5,
subdivision (a) appeals illustrate markedly higher levels of
violence and greater threats of bodily harm than were present in
this case.” As Bell summarizes his argument, this factor is
6Because we exercise our discretion to reach the merits of
Bell’s challenge to his sentence, we need not pass upon his
alternative claim that trial counsel rendered ineffective
assistance by failing to preserve this challenge for appeal. (Cf.
People v. Urbano (2005) 128 Cal. App. 4th 396, 404 [concluding
that an appellant’s claim that his trial counsel rendered
ineffective assistance by failing to object was moot because the
appellate court had exercised its discretion to reach the merits of
the appellant’s challenges to his sentence].)
9
inapplicable because his offense was not “distinctively worse than
the ordinary.” (See also People v. Hicks (2017) 17 Cal. App. 5th
496, 512 [“Insofar as imposition of the upper term is concerned,
‘[a]n aggravating circumstance is a fact that makes the offense
“distinctively worse than the ordinary.” ’ ”].)
Bell’s first contention fails for two reasons. First, the mere
fact that section 273.5, subdivision (a) requires “some violence” on
the part of the perpetrator does not negate the trial court’s
implicit finding that Bell’s violent conduct was distinctively
worse than the ordinary violation of that statute. Second, a
threat of great bodily harm is not inherent in this offense because
section 273.5, subdivision (a) does not require such a showing,
(see § 273.5, subd. (a)), and “ ‘serious bodily injury’ ” and “ ‘force
likely to produce great bodily injury’ ” are not required
thereunder; rather, injury of a “ ‘minor . . . nature’ ” is sufficient
to give rise to liability under section 273.5, subdivision (a), so
long as the harm was not “de minimis.” (See People v. Gutierrez
(1985) 171 Cal. App. 3d 944, 951–953 & fn. 6.)
Bell’s claim that T.F.’s injuries did not require medical
treatment is also unavailing. California Rules of Court,
rule 4.421(a)(1) permits trial courts to consider whether “[t]he
crime involved . . . threat of great bodily harm” and not merely
whether the victim in fact suffered “great bodily harm.” (See Cal.
Rules of Court, rule 4.421(a)(1), italics added.) Moreover, Bell
concedes there is evidence that: Bell “punched [T.F.] in the head,
face, legs, and ribs multiple times”; he “kicked and pushed” T.F.
“[w]hen she tried to shield herself by curling into a ball”; and T.F.
“sustained swelling and bruising around her right eye and
bruises on both arms.” Yet, Bell does not explain why this
evidence is insufficient to show that he subjected T.F. to a threat
10
of great bodily harm. We thus conclude that the record
supports the trial court’s ruling. (Cf. People v. Hopkins (1978)
78 Cal. App. 3d 316, 318–319, 321 [concluding that a defendant
who “beat and kick[ed] [the victim] in the head” multiple times,
thereby causing the victim to “suffer[ ] a cut on the forehead, . . .
a bloody and swollen nose, and puffed eyes,” had used force that
“can only be categorized as . . . force likely to cause serious bodily
harm” for the purposes of assault by means of force likely to
produce great bodily injury].)
Lastly, although Bell claims that four published appellate
decisions involving section 273.5 convictions “illustrate markedly
higher levels of violence and greater threats of bodily harm than
were present in this case,” he does not argue that these are
“ordinary” cases or that they present the only factual scenarios
in which the threat of great bodily injury was “distinctively
worse than the ordinary.” (Citing People v. Rogers (2016)
245 Cal. App. 4th 1353, 1358; People v. Tennard (2017)
18 Cal. App. 5th 476, 481–482; People v. Belton (2008)
168 Cal. App. 4th 432, 436; People v. Mora (1996) 51 Cal. App. 4th
1349, 1352.) Thus, Bell fails to establish that the trial court
abused its discretion in impliedly finding that the instant case
was distinctively worse than the “ordinary” section 273.5,
subdivision (a) case. (See People v. Sanghera (2006)
139 Cal. App. 4th 1567, 1573 (Sanghera) [“Perhaps the
most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error.”].)
For these reasons, we conclude that the trial court did not
act “ ‘arbitrar[ily] or irrational[ly]’ ” in relying in part upon this
11
aggravating factor in the course of determining Bell’s prison
sentence. (See Lamb, supra, 206 Cal.App.3d at p. 401.)
2. High Degree of Callousness
Bell challenges his sentence to the extent it is predicated on
the trial court’s finding that he acted with a high degree of
callousness. In making this claim, Bell does not dispute the
People’s assertions that: “(1) Bell’s attack occurred while he was
staying at [T.F.’s] house . . . ; (2) after [T.F.] offered to hire Bell [a
transportation service] to take him home, he grew angry, and
began pushing, threating and throwing fake punches at her while
insisting she drive him herself; (3) when [T.F.] referred to some
handymen nearby, Bell told her that he did not ‘give a fuck’ and
that he would ‘fuck [her] up anyway’ ”; (4) Bell ‘wanted to control
the situation throughout,’ and was not remorseful; and (5) [T.F.]
asked Bell to work on her door as a way to appease him.” Bell
actually concedes that “these [facts] all . . . constitute insensitive,
and even cruel actions . . . .”
Notwithstanding this concession, Bell contends that the
aforesaid behavior cannot support the imposition of the upper
prison term because it is “not out of line with, or in other words,
rising to the level of a ‘high degree of . . . callousness[,’] when
compared with behaviors often seen within the context of a
relationship involving domestic violence.” This argument is
premised solely on a citation in Bell’s reply brief to a page on the
Centers for Disease Control and Prevention’s (CDC’s) website
that discusses “intimate partner violence.” Bell maintains that,
because this webpage shows that “violence among intimate
partners can take the form of not only physical and sexual
violence, [but] also . . . ‘the use of verbal and non-verbal
communication with the intent to harm another person mentally
12
or emotionally and/or to exert control over another person[,]
[citation,] . . . [t]he examples [the People] raise[ ] all fall into
range of the types of the cruel and callous forms of physical and
psychological harms and behaviors that constitute domestic or
intimate partner violence.” (Fn. omitted.)
We disregard this argument because “our review on appeal
is limited to consideration of the matters contained in the record
before us,” (People v. Endsley (2016) 248 Cal. App. 4th 110, 123),
and Bell does not contend that the page from the CDC’s website
is judicially noticeable. (See also Evid. Code, § 459, subd. (a)
[providing that a reviewing court may take judicial notice of
certain matters that were not before the trial court].) Thus, Bell
fails to establish that the trial court erred in relying upon this
aggravating factor.
3. Particular Vulnerability of T.F.
Although Bell insists T.F. was not particularly vulnerable,
he does not dispute there was evidence that Bell “had blocked
[T.F.’s] egress during the attack” and that T.F. “later felt that she
needed to appease Bell to prevent further attack . . . .” This
evidence supports the trial court’s finding that T.F. was
particularly vulnerable because it tends to show that T.F.
was unable to defend herself from Bell’s violent behavior. (See
People v. Clark (1990) 50 Cal. 3d 583, 638 [“The ‘particularly
vulnerable victim’ factor supports imposition of the upper term if
the victim is vulnerable ‘in a special or unusual degree, to an
extent greater than in other cases [and is] defenseless,
unguarded, unprotected, accessible, assailable . . . susceptible to
the defendant’s criminal act.’ ”].)
Bell cites People v. Mora (1996) 51 Cal. App. 4th 1349, 1355
(Mora), and Butler v. Curry (9th Cir. 2008) 528 F.3d 624, 650
13
(Butler), for the proposition that “[t]hese [facts] are among the
classic hallmarks of vulnerability that prompted the California
legislature to enact section 273.5 and make it a potential felony.”
Although Bell’s argument on this point is not entirely clear, he
seems to argue that Mora and Butler establish that vulnerability
is inherent in a romantic relationship. (See Mora, supra,
51 Cal.App.4th at p. 1355 [“[S]ection 273.5 serves to protect
partners in a special relationship from which society demands,
and the victim may reasonably expect, stability and safety. In
such relationships, the victim may be particularly vulnerable.”];
Butler, supra, 528 F.3d at p. 650 [“[I]t is in the nature of domestic
violence that its victims are vulnerable, because of their close
relationship with their attacker, their attacker’s typically greater
physical strength, and their isolation in their homes.”].) From
this proposition, he appears to assert something more is needed
for vulnerability to be a factor in imposing the high term.
Accepting for argument’s sake only that vulnerability is implicit
in a romantic relationship, Mora and Butler do not undermine
the trial court’s finding that T.F. was particularly vulnerable.
Neither case holds that a perpetrator’s blocking a victim of
physical violence’s means of egress and the victim’s feeling
compelled to appease the perpetrator in order to avoid further
injury are merely inherent vulnerabilities in a romantic
relationship.
Thus, Bell has not overcome the presumption of correctness
as to the trial court’s decision to impose the upper prison term
based in part on T.F.’s particular vulnerability. (See Sanghera,
supra, 139 Cal.App.4th at p. 1573 [holding that the appellant
must affirmatively demonstrate trial court error].)
14
4. Mitigating Factors
Bell complains the trial court did not consider adequately
the following mitigating factors: (a) T.F. had been “a physical
aggressor in trying to take Bell’s phone from him prior to the
incident and . . . admitted slapping Bell in a past altercation”;
(b) Bell’s long-standing substance abuse may have contributed to
the incident; and (c) Bell had multiple letters of support
submitted on his behalf. Bell’s opening brief intimates that the
sole basis of this argument is the lower court’s statement that it
did not “really see a lot of mitigating circumstances.” This claim
is unavailing.
“ ‘Sentencing courts have wide discretion in weighing
aggravating and mitigating factors [citations], and may balance
them against each other in qualitative as well as quantitative
terms.’ ” (Lamb, supra, 206 Cal.App.3d at p. 401.) Further, “the
trial court need not state reasons for minimizing or disregarding
circumstances in mitigation.” (Ibid.)
The trial court’s statement that it did not “really see a lot of
mitigating circumstances” does not demonstrate that it ignored
the mitigating factors Bell identifies. (Italics added.) Rather, the
court’s observation suggests that in the exercise of its sentencing
discretion, the court gave minimal weight to those factors.
Because Bell does not direct us to any evidence to the contrary,
we presume that the trial court permissibly exercised its
discretion in this manner. (See Cal. Rules of Court, rule 4.409
[“Relevant factors enumerated in these rules must be considered
by the sentencing judge, and will be deemed to have been
considered unless the record affirmatively reflects otherwise.”];
People v. Giordano (2007) 42 Cal. 4th 644, 666 [“On appeal,
we presume that a judgment or order of the trial court is correct,
15
‘ “[a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be
affirmatively shown.” ’ ”].)
Additionally, the trial court stated at the sentencing
hearing that it had “read and considered the probation report,
along with the sentencing reports.” In Bell’s sentencing
memorandum, he advanced two of the three mitigating factors
he asserts on appeal—i.e., his “chronic substance abuse
may . . . have been a contributing factor to the . . . offense” and
T.F. “was the physical aggressor in trying to obtain . . . Bell’s
phone” and had “admitted to slapping [Bell]” on a prior occasion.
Furthermore, Bell admits that he attached “the multiple letters
of support submitted on [his] behalf” to his sentencing
memorandum. Thus, the record affirmatively demonstrates that
the trial court considered each of Bell’s cited mitigating factors,
but exercised its discretion to give them little weight.
B. The Record Does Not Show that the Trial Court
Precluded Bell from Introducing Evidence that T.F.
Had Previously Hit Herself
Bell avers the trial court committed reversible error by
excluding evidence that T.F. hit herself in the head
approximately one month before the November 2, 2017 incident.
We disagree.
It is undisputed: (1) the trial court did not rule on the
People’s motion to exclude this evidence, and (2) despite the
trial court’s invitation, Bell did not make an offer of proof to allow
the court to assess whether Bell had “a good faith basis” for
admitting this evidence.
There is also no dispute that the only occasion on which
Bell attempted to introduce evidence that T.F. harmed herself
16
was when defense counsel asked Bell’s mother “a single question”
on the subject. Specifically, defense counsel asked Bell’s mother:
“Did Mr. Bell ever tell you that [T.F.] had hit herself at a
birthday party?” Bell’s mother replied, “Yes.” The People then
stated: “Objection, that calls for hearsay. 402.” The trial court
responded: “Sustained. [¶] The jury is to disregard it.” The
court did not further elaborate on its rationale for sustaining this
evidentiary objection.
Bell does not challenge the People’s hearsay objection.
Rather, Bell intimates that because the People’s objection also
obliquely referenced their pretrial motion to exclude this evidence
(i.e., because the People mentioned Evidence Code section 402 in
addition to the hearsay rule), the trial court’s decision to sustain
the objection in question must have been based upon the finding
that the evidence was irrelevant, was barred by Evidence Code
section 352, and/or was inadmissible for the reasons provided in
the People’s pretrial motion to exclude. Bell further contends
that such a ruling was erroneous.
Given that the trial court did not issue a ruling on the
People’s pretrial motion and the court could have sustained the
People’s evidentiary objection solely on the ground that defense
counsel’s question called for hearsay, we presume that the court
did not commit the error Bell asserts, to wit, that the trial court
purportedly excluded the evidence as irrelevant, under Evidence
Code section 352 as prejudicial, and/or for the reasons provided in
the People’s pretrial motion to exclude. (Cf. People v. Anthony
(2019) 32 Cal. App. 5th 1102, 1140–1141 [rejecting a hearsay
challenge to the admission of certain expert testimony because
the record did not disclose the underlying source of the expert’s
testimony and the Court of Appeal “must presume all
17
intendments and presumptions in favor of the judgment,”
meaning that “ ‘ “ ‘on matters as to which the record is
silent, . . . error must be affirmatively shown’ ” ’ ”].)
We thus do not accept Bell’s invitation to opine on whether
the court would have committed reversible error had it made
such a ruling. (See People v. Slayton (2001) 26 Cal. 4th 1076,
1084 [“As a general rule, we do not issue advisory opinions
indicating ‘ “what the law would be upon a hypothetical state of
facts.” ’ ”].)
In sum, the record does not establish that the trial court
perpetrated the error of which Bell complains.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18