People v. Smith CA1/5

Filed 10/29/20 P. v. Smith CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A156741
v.
RAYVAUGHN LEWIS (San Francisco County
SMITH, Super. Ct. No.
SCN229129)
Defendant and Appellant.
Appellant Rayvaughn Lewis Smith (Appellant) appeals from the
judgment entered following his conviction of assault with intent to commit a
felony and other offenses. He contends the trial court erred in excluding
evidence proffered to impeach the victim’s credibility. The court did not
abuse its discretion.
PROCEDURAL BACKGROUND
In May 2018, the San Francisco County District Attorney charged
Appellant by information with assault with intent to commit a felony against
a person under the age of 18 (Pen. Code, § 220, subd. (a)(2); count one);1 child
endangerment (§ 273a, subd. (a); count two); false imprisonment (§ 236; count
1 All undesignated statutory references are to the Penal Code.
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three); and giving false information to a police officer (§ 148.9, subd. (a);
count four).
A jury found Appellant guilty as charged. In March 2019, the trial
court sentenced Appellant to a prison term of five years on count one, stayed
the sentences on counts two and three pursuant to section 654, and imposed
a jail term on count four with credit for time served equal to the length of the
term.
FACTUAL BACKGROUND
According to the testimony at trial,2 the charges arose out of an April
22, 2018 incident at a San Francisco parking structure. The victim, 16-year-
old S.G., testified she and two female friends met up with Appellant at the
parking structure. They drank and smoked marijuana until the victim’s
friends left. She stayed behind to finish the marijuana cigarette she was
smoking. Afterwards, as S.G. and Appellant walked toward the exit, he
pulled her into a corner. He started pulling down her pants and exposed his
penis. S.G. said, “We not fittin to do all that” and pulled up her pants;
Appellant punched her in the face. She continued to try to pull her pants up,
and he punched her several more times. They continued to struggle, while
Appellant insisted they have sex and tried to remove her pants.
A building concierge monitoring a surveillance camera testified she saw
a couple struggling in the garage. She approached the area and heard a
female voice saying “stop,” and then called the police. A police officer
testified he heard a man and woman screaming or arguing when he arrived
on the scene. Appellant falsely identified himself and said S.G. was drunk
and he was trying to take her home. S.G., whose face was red and swollen on
2We summarize only some of the evidence admitted at trial, which is
sufficient for resolution of the issues on appeal.
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the left side, said Appellant had tried to rape her. During a custodial
interrogation, Appellant initially denied any misconduct, but he admitted
striking S.G. when the interrogating officer told him the parking structure
had a surveillance camera.
Appellant testified S.G. called him on April 22, 2018, and asked him if
he would sell her some marijuana. They flirted and talked about having sex.
Appellant met up with S.G. and her friends and they walked into a parking
structure to hang out. The group drank alcohol and the girls smoked
marijuana. After 30 minutes to an hour, S.G.’s friends left. One said, “I’m
going to leave you guys to do what you do,” which Appellant understood to be
a reference to sex. After S.G.’s friends left, he asked her, “Are you ready to do
that?” and she responded, “Yes.” They consensually kissed and touched each
other sexually, but then S.G. said she was late getting home and did not want
to have sex that night. Appellant admitted that, after further argument, he
punched S.G. twice. He testified he hit S.G. because he was upset she had, as
he described it, led him on. He never tried to have sex with her after he hit
her.
DISCUSSION
Appellant’s sole claim on appeal is that the trial court abused its
discretion by denying admission of proposed impeachment evidence—to wit,
an incident during which S.G. allegedly tasered a fellow student
approximately one month after the events underlying the charged offenses.
The trial court did not abuse its discretion.
I. Background
Before trial, Appellant sought to admit evidence of, as described by the
trial court, a “juvenile [delinquency] matter [in which] the complaining
witness is alleged to have brought a TASER to school and Tased a classmate.”
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The court expressed its understanding that the alleged basis for admissibility
was to impeach S.G.’s credibility. The court stated, “this is a case where the
primary charge is that the defendant assaulted the complaining witness. So
what we’re talking about, or what seems to be most at issue, is the credibility
of the parties. It’s going to be, it looks like, one person’s word against
another.” Defense counsel confirmed that was one of the asserted bases for
admissibility, but she argued the evidence was also admissible as character
evidence of S.G.’s propensity for violence under Evidence Code section 1103.
The argument was based on Appellant’s assertion that S.G. pushed him
during the incident. Defense counsel argued the evidence of the tasering
would tend to prove S.G. was lying if she denied shoving Appellant. Defense
counsel said they would need to call the victim of the tasering as a witness if
S.G. denied the tasering.
The prosecutor argued the tasering evidence was a “fairly weak” attack
on S.G.’s credibility, jurors would be confused about the relevance of the
evidence, and, because the incident had not been adjudicated, admission of
the evidence would require “a trial within a trial.” Regarding the
impeachment value of the evidence, the prosecutor argued the tasering
incident was weak evidence of “moral turpitude” because S.G. acted out of
anger after the victim “laughed at a racist joke that was made by one of his
friends.” The prosecutor continued, “the reason why assaults are considered
moral turpitude is because it’s a readiness to do evil [and] a disregard for
other people. Here, she was prompted, emotionally, to act. It was
unreasonable and illegal for her to do so, but it wasn’t a random act of
violence . . . .” Previously, the prosecutor had told the trial court that if the
defense were permitted to present evidence of the tasering incident, the
prosecution would ask its expert witness a series of questions to explain
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S.G.’s behavior. The prosecutor argued, “it is quite common for those who
have experienced this type of trauma who are still in a traumatic state to
overreact to stressors and act in a way that they normally would not, but for
the fact that they are still emotionally dealing with what happened to them
initially.” The prosecutor asserted that “probably a day” of the trial would be
consumed addressing the tasering incident, while defense counsel argued the
evidence would not consume much time.
The trial court excluded evidence of the tasering incident, stating, “I
have very carefully weighed the probative value versus the prejudicial value
of this evidence, and my ruling is that under Evidence Code Section 352, I’m
going to exercise my discretion and exclude any evidence that the
complaining witness Tased a fellow student at school.” The court also made
additional comments explaining why the defense counsel’s character evidence
theory failed, given that “this is not a self defense case.”
II. Analysis
At the outset, Appellant argues, “the trial court only considered the
evidence for its use as propensity evidence. The court never conducted the
separate and independent analysis of whether the evidence was admissible to
impeach the complaining witness.” Appellant concedes the propensity theory
of admissibility was weak and does not assert error as to that theory on
appeal. But Appellant argues the trial court erred in failing to consider the
impeachment basis for admissibility. We disagree the record shows the court
failed to consider that basis. The trial court articulated defense counsel’s
impeachment theory at the outset of the discussion, both counsel argued both
theories of admissibility, and the court’s Evidence Code section 352 reasoning
applies on its face to both theories of admissibility. We will not presume that
in making its ruling the trial court was only considering the evidence’s
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probative value as character evidence under Evidence Code section 1103.
(People v. Giordano (2007) 42 Cal. 4th 644, 666 [“On appeal, we presume that
a judgment or order of the trial court is correct, ‘ “[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.” ’ ”]; People v. Stowell (2003) 31
Cal. 4th 1107, 1114 [“we apply the general rule ‘that a trial court is presumed
to have been aware of and followed the applicable law.’ ”].)
Appellant also argues it was an abuse of discretion to exclude evidence
of the tasering incident under Evidence Code section 352. Under that
section, the trial 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.” (Ibid.)
Appellant argues the tasering incident was probative on the issue of S.G.’s
credibility as evidence of past misconduct. Under Evidence Code section 210,
“relevant evidence” includes “evidence relevant to the credibility of a
witness.” It is also well established that “ ‘a witness’ moral depravity of any
kind has “some tendency in reason” [citation] to shake one’s confidence in his
honesty. . . . [¶] There is . . . some basis . . . for inferring that a person who
has committed a crime which involves moral turpitude [even if dishonesty is
not a necessary element] . . . is more likely to be dishonest than a witness
about whom no such thing is known.’ ” (People v. Wheeler (1992) 4 Cal. 4th
284, 295 (Wheeler).)
The prior misconduct in the present case resulted in a misdemeanor
juvenile proceeding, but the inference that “[m]isconduct involving moral
turpitude may suggest a willingness to lie . . . is not limited to conduct which
resulted in a felony conviction.” (Wheeler, supra, 4 Cal.4th at pp. 295–296;
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see also People v. Hall (2018) 23 Cal. App. 5th 576, 589 [“Misdemeanor
misconduct involving moral turpitude may suggest a willingness to lie, which
is relevant to the credibility of a witness or hearsay declarant.”].)
Nevertheless, “a misdemeanor—or any other conduct not amounting to a
felony—is a less forceful indicator of immoral character or dishonesty than is
a felony. Moreover, 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.” (Wheeler, at pp. 296–297; accord People v. Contreras (2013) 58
Cal. 4th 123, 157, fn. 24; Hall, at p. 589.)
At the outset, we observe that evidence of the tasering incident was
only minimally probative regarding S.G.’s credibility. Although it does not
appear the trial court concluded the incident involved no moral turpitude,3
Appellant does not argue S.G.’s conduct involved any actual dishonesty.
Instead, any relevance was based on the incident’s tendency to show a
“ ‘general readiness to do evil.’ ” (People v. Castro (1985) 38 Cal. 3d 301, 315.)
Prior misconduct that is “ ‘assaultive in nature’ ” does “ ‘not weigh as heavily
in the balance favoring admissibility’ ” as misconduct involving “ ‘dishonesty
or some other lack of integrity.’ ” (Ibid.) Although the tasering incident
appears to reflect some readiness to use violence, respondent observes S.G.
3 The determination whether conduct involves moral turpitude is a legal
question. (People v. Gray (2007) 158 Cal. App. 4th 635, 640.) The trial court’s
exclusion of the evidence under Evidence Code section 352 suggests the court
either determined or assumed for purposes of its analysis that the conduct
involved moral turpitude and, therefore, had at least some minimal
relevance.
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was provoked because the victim laughed at a racist joke, and the prosecutor
told the trial court its expert was prepared to testify the assault on April 22,
2018 increased the likelihood that S.G. would act out in violent ways.4 The
trial court could reasonably have concluded the already extremely weak
impeachment value of the tasering incident was furthered diminished by
those circumstances.
As respondent argues, admission of evidence of the tasering incident
also risked undue prejudice. First, the connection between the incident and
S.G.’s credibility was so tenuous that the trial court reasonably could have
been concerned that the jury would be confused about the reason for
admission of the evidence of the incident. Second, given the lack of a clear
connection to S.G.’s credibility, there was a risk the main effect of the
evidence would be to make the jury hostile to S.G. Finally, the trial court
could reasonably have found admission of evidence of the tasering incident
risked undue consumption of time. Although Appellant argued below and on
appeal that presentation of evidence regarding the incident would not require
substantial time, the prosecutor told the trial court it would present rebuttal
witnesses and also ask its expert witness about the incident. The trial court
reasonably could have concluded admission of the evidence would result in a
not insignificant distraction for evidence of almost no legitimate probative
value.
4 Appellant argues the tasering incident was particularly probative of S.G.’s
credibility because it occurred only a month after the underlying events. But
the expected expert testimony actually made the proximity to the assault a
factor that reasonably could be viewed as diminishing the probative value of
the tasering.
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The trial court did not abuse its discretion in excluding evidence of the
tasering incident under Evidence Code section 352.5
DISPOSITION
The judgment is affirmed.
5 Appellant also contends exclusion of evidence of the tasering incident
violated his federal constitutional right of confrontation. However, “[t]he
federal Constitution’s confrontation right is not absolute; it leaves room for
trial courts to impose reasonable limits on a defense counsel’s cross-
examination of a witness.” (People v. Sapp (2003) 31 Cal. 4th 240, 290.)
Prohibiting cross-examination on this one point of marginal relevance did not
violate Appellant’s right of confrontation.
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SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
BURNS, J.
(A156741)
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