People v. Scott-Gibson CA3

Filed 10/29/20 P. v. Scott-Gibson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C090170
Plaintiff and Respondent, (Super. Ct. No. 18F8448)
v.
JEREMIAH OBEDIAH SCOTT-GIBSON,
Defendant and Appellant.
Defendant Jeremiah Obediah Scott-Gibson appeals his conviction for corporal
injury to a spouse. At trial, the trial court ruled that text messages showing defendant
was attempting to dissuade a witness from testifying would be admissible to impeach
defendant; however, defendant did not testify. On appeal, defendant contends the trial
court infringed on various of his constitutional rights by permitting this evidence. We
affirm on the basis defendant’s appeal is procedurally barred because he chose not to
testify.
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FACTUAL AND PROCEDURAL BACKGROUND
At trial, defendant’s wife, S.O., testified that while they were separated, defendant
asked her to come to his apartment one night. Defendant appeared intoxicated and told
S.O. he had cheated on her with her friend. S.O. poured a beer on defendant’s head and
after initially sitting there, defendant lunged at her, started choking her, they fell to the
floor, and he slammed her head on the ground. Defendant then grabbed her by the hair
and shoved her out of the apartment.
Defendant’s ex-wife, R.C., testified to a prior event of physical violence when she
was married to defendant where defendant scratched her wrist while pulling her out of
bed and then tried to break her phone.
During a break in S.O.’s testimony, the court and parties discussed admission of
text messages between Conry and defendant made two weeks before trial. The text
messages showed Conry told defendant she had been asked to testify. The conversation
continued:
“[Defendant:] What are you gonna say? [¶] Will you talk to my lawyer first
before you decide?
“[Conry:] The truth. I don’t know what they’ll ask. I’m sure they’ll ask about
what happened with us a few years ago.
“[¶] . . . [¶]
“[Defendant:] It’s your call [Conry], but only testify if you want me to go to
prison for a crime I didnt [sic] commit.”
Conry told the prosecutor she understood the texts to mean defendant was asking
her to not testify.
The prosecutor told the court he intended to introduce the text messages only if
defendant testified because it was late discovery and he did not want to spring this on the
defense. Defendant’s counsel argued the messages were not relevant because defendant
was not accused of a crime against Conry and they would be highly prejudicial. Counsel
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also noted defendant’s “very testimony could hinge on the admissibility of these
statements” and indicated defendant would want a ruling before deciding whether to
testify.
The court ruled the text messages would be admissible for impeachment if
defendant chose to testify. The court found the text message stating “only testify if you
want me to go to prison for a crime I didnt [sic] commit” highly relevant with respect “to
motivation, [it] is relevant to show possible guilt. And, [defense counsel], certainly
something that you could try to have [defendant] explain with respect to the part where
he says it’s a ‘crime I didn’t commit.’ He certainly could explain what he meant by this,
but there’s a very strong inference that he’s attempting to manipulate the witness and
dissuade her from coming in to testify. I do think that’s relevant.” The court therefore
ruled, under Evidence Code section 352, the probative value outweighed any risk of
prejudice because it “goes directly to [defendant’s] credibility and would be allowed to
impeach him, so I would allow that exhibit to come into evidence.”
The court reminded defendant he had an absolute right to testify and defendant
acknowledged he understood. The court also went into recess to allow defendant to
discuss with his attorney whether to testify. When the court returned, defense counsel
requested 10 or 15 minutes more to further discuss the impact of the court’s ruling, and
the court went into recess again. Defendant ultimately decided to not testify.
The jury found defendant guilty of corporal injury to a spouse, the sole charged
count. The court suspended imposition of sentencing and granted defendant three years’
probation.
DISCUSSION
Defendant argues the court improperly permitted the admission of the text
messages. Though he concedes “the court did not openly advise [him] to refrain from
testifying, the court’s findings made it abundantly clear that such would not be beneficial
to [him].” This “threat” impaired his constitutional right to testify and prepare a
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complete defense. Because defendant failed to testify, we conclude he has not preserved
his contention for review and his challenge is procedurally barred.
The defendant must testify at trial to preserve a challenge to the trial court’s ruling
allowing impeachment by prior convictions. (People v. Sanghera (2016) 6 Cal. App. 5th
365, 370, citing Luce v. United States (1984) 469 U.S. 38, 43, [83 L. Ed. 2d 443, 448)]; see
People v. Collins (1986) 42 Cal. 3d 378, 383-388.) This procedural rule applies not only
to prior convictions, but also to prior misconduct impeachment evidence. (People v. Sims
(1993) 5 Cal. 4th 405, 453-456.)
The rationale for this procedural bar is because, without a defendant’s testimony:
(1) a trial court cannot properly perform the balancing of probative value and prejudicial
effect without knowing the precise nature of the defendant’s testimony; (2) any harm
from the ruling is “ ‘ “wholly speculative” ’ ” because the court may change its ruling and
the prosecutor may not use the prior conviction to impeach; and (3) an appellate court
cannot review the trial court’s balancing process “ ‘unless the record discloses “the
precise nature of the defendant’s testimony.” ’ ” (People v. Sanghera, supra,
6 Cal.App.5th at p. 372.) This rationale is similarly applicable here. Though the text
messages are not evidence of a conviction, they are evidence of past misconduct intended
to impeach defendant if he testified. The probative value and prejudicial effect were
dependent on the testimony being impeached. And defendant’s choice not to testify
renders impossible our review of the trial court’s ruling. Thus, without a defendant’s trial
testimony, the record is incomplete for reviewing the trial court’s balancing analysis, so
any harm is wholly speculative. (Id. at p. 373.)
Defendant attempts to evade the applicability of this rule by claiming that the
court’s tentative ruling “virtually assured” that defendant would not testify and was
essentially a threat that precluded him from presenting a complete defense. This court
has previously rejected such a claim: “[A]ny harm from the trial court’s ruling is
‘ “wholly speculative” ’ since the trial court may change its ruling as the evidence is
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adduced and the prosecutor may decide not to use the prior conviction to impeach.”
(People v. Sanghera, supra, 6 Cal.App.5th at p. 372.) We likewise reject defendant’s
claim.
DISPOSITION
The judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Murray, J.
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