P. v. Diaz



















Filed 3/4/13 P. v. Diaz CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. OSCAR ROBLES DIAZ, Defendant and Appellant.

G046174 (Super. Ct. No. 09CF1360) O P I N I O N

Appeal
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.

Tonja
R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff
and Respondent.

* * *

A jury convicted defendant
and appellant Oscar Robles Diaz of second degree murder in the 2009 stabbing
death of Leon Torres. Diaz contends the trial
court erred in excluding evidence that three years earlier Torres threatened to
shoot his landlord’s son in an argument over unpaid rent. The court excluded the 2006 incident under
Evidence Code section 352href="#_ftn1"
name="_ftnref1" title="">[1]
because it had only “marginal[] probative” value and admitting it would
“confuse the issues at trial [and] . . . unduly consume time.” Diaz argues the evidence supported his href="http://www.mcmillanlaw.com/">self-defense claim because it showed
Torres’s propensity for violence. We find
no abuse of discretion and affirm the trial court’s judgment.

I

Facts and Procedural History

Diaz,
Torres, Faustino Diaz, and Rafael Herrera were four of approximately
15 people who shared the same house in Santa Ana,
California.href="#_ftn2" name="_ftnref2" title="">[2] The four men drank beer together in the front
yard late one night in May 2009. At the
time, Diaz and Torres had known each other for the two months they lived in the
house, but they rarely interacted. Diaz
and his uncle, Faustino, drank earlier that evening with some friends. Similarly, Torres and Herrera had begun
drinking at a friend’s house much earlier in the day.

Initially,
the four men drank beer and talked without any problems. At some point, however, a disagreement arose
with Diaz and Faustino on one side and Torres on the other. Diaz and Faustino nearly came to blows with
Torres, but Herrera stepped between the men and asked, “‘Are we here to drink
or are we here to fight?’” That comment
calmed everyone down and the four men resumed drinking beer and talking.

Faustino
testified he was talking with Herrera when he heard a fight break out behind
him between Diaz and Torres. He did not
see how the fight started, but when he turned around he saw the two men
punching and grabbing each other.
Faustino testified he stepped between Diaz and Torres to separate them
and saw a lot of blood as a pocketknife fell from Diaz’s hand. At that point, Diaz fled the scene as Torres
sat on the ground bleeding profusely.
Faustino attempted to help Torres, but Herrera told him to leave.

Herrera
testified he did not see the fight.
Rather, after the men resumed drinking beer and talking, Herrera walked
into the house to use the restroom. When
he returned, Diaz and Faustino were gone and Torres was leaning against the
fence bleeding. Herrera phoned for help,
but Torres died from the knife wounds inflicted during the fight. An autopsy revealed Torres suffered 20 stab
wounds to his neck, head, torso, and extremities. Eleven of those wounds were to his back and
the back of his legs.

Diaz
agreed to speak with investigators after his arrest for Torres’s death. Initially, Diaz claimed he intervened to
prevent Torres from carrying out his threat to kill Faustino. When Diaz stepped in to protect Faustino,
Torres pulled a knife and told Diaz, “‘You will go first.’” Torres then assaulted Diaz, cutting his
finger with the knife and striking blows.
At that point, Diaz fought back.
He told the investigator he wrestled the knife from Torres because he
felt “‘obligated’” to do so. Diaz also
claimed he had heard Torres killed someone in Mexico.

The
investigator told Diaz he did not believe Diaz’s version of the altercation
because other witnesses blamed Diaz for starting the fight. The investigator warned Diaz, “‘You will find
yourself having more problems if you lie.’”
At that point, Diaz conceded the fight started when he got angry because
Torres insulted him and kicked him in the shin.
After Torres kicked him, Diaz pulled his pocketknife and swung it at
Torres with his right hand. As Torres
backed up, Diaz tried to grab Torres with his left hand but missed and cut his
own finger.

As
the fight progressed, Torres fell to the ground as Diaz jumped on top of him
and stabbed him in the stomach. Diaz
altered his grip on the knife and repeatedly stabbed Torres in an up and down
motion. He reenacted the entire fight
with the investigator posing as Torres during the brawl. Diaz never claimed he was afraid of Torres or
feared for his life. Instead, he
repeatedly admitted he angrily stabbed Torres because Torres insulted him. Indeed, Diaz acknowledged he was so furious
and enraged he blacked out at one point.


The
prosecutor charged Diaz with murder and an enhancement for using a deadly
weapon. Before trial, the prosecutor
asked the court to exclude defense evidence that in 2006 Torres threatened to
shoot his landlord’s son when the son came to Torres’s residence to turn off
the power for failing to pay the rent.
When uttering the threat, Torres held his hand under his shirt as though
he was holding a gun, although the landlord’s son was unsure whether Torres
actually possessed a firearm. The
landlord’s son called 911 and reported, “‘I think he might have a gun. I haven’t seen the gun. We don’t know the identity of these
people. They gave us false names. We just need the police to come out here and
get their identification information because they’re going to leave and not pay
rent.’” At the same time, Torres’s son
called 911 and reported the landlord’s son had threatened Torres’s family with
a knife. When the police arrived they
arrested Torres, but according to the prosecutor they did not find any weapons
and Torres was never convicted of a crime.


In
opposition, Diaz disputed several representations the prosecutor made regarding
the 2006 incident. Diaz explained
(1) the landlord’s son saw a gun in Torres’s hand and merely told the
police he did not know if the gun was real; (2) contrary to the
prosecutor’s representation, investigators found two pellet guns in Torres’s
residence; (3) the prosecutor failed to point out that Torres also told
the landlord’s son, “‘You think you’re the first person I’ve killed?’”; and
(4) although Torres was not convicted under Penal Code section 422 for
making threats, the case “settled” when Torres pleaded guilty to disturbing the
peace. Diaz argued evidence of the 2006
incident was relevant to his self‑defense and imperfect self-defense
claims because it showed Torres had a propensity for violence and was likely
the aggressor in the fight with Diaz.

The
trial court excluded the 2006 incident under section 352, explaining it found
the evidence “marginally probative” and admitting it would “confuse the issues
at trial [and] . . . unduly consume time.” Finally, the court stated it would reconsider
its ruling if warranted by other evidence at trial.

Diaz
twice asked the court during trial to reconsider its ruling, but the court
rejected both requests because none of the evidence altered the court’s view
that the 2006 incident was marginally relevant. In rejecting Diaz’s final request, the court
reiterated, “[t]he main reason it’s not going to be admitted is because of the
undue consumption of time and the tendency to confuse the issues.”

The
jury found Diaz guilty of second degree murder and using a deadly weapon in the
commission of that offense. The court
later sentenced Diaz to a term of 16 years to life in prison. He timely appealed.

II

Discussion

A. The Trial Court Did Not
Abuse Its Discretion in Excluding Evidence Regarding the 2006 Incident

Diaz’s
sole contention on appeal is that the trial court erred in excluding evidence
of the 2006 incident. Diaz argues the
evidence was admissible as character evidence to show Torres had a propensity
for violence, which supported Diaz’s initial statement to the police
investigator that he “acted in self-defense when Torres pulled a knife, hit
him, cut him and threatened him.” We
find no error in the trial court’s ruling.


Section
1101, subdivision (a), establishes the general rule that evidence of a person’s
character or a trait of his or her character is inadmissible when offered to
prove the person acted in conformity with that character or trait on a specific
occasion. Section 1103, subdivision
(a)(1), provides an exception to that general rule applicable only in criminal
cases. It allows “evidence of the
character or a trait of character . . . of the victim of the crime
for which the defendant is being prosecuted . . . if the evidence is: [¶]
. . . [o]ffered by the defendant to prove conduct of the
victim in conformity with the character or trait of character.” Thus, section 1103, subdivision (a)(1),
permits evidence of a victim’s character when it is offered to explain,
justify, or excuse the defendant’s conduct toward the victim (>People v. Tackett (2006)
144 Cal.App.4th 445, 455 (Tackett)),
and may be “in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct” (§ 1103, subd. (a)).

Defendants
charged with violent crimes may offer evidence of a victim’s character for
violence to show the defendant acted in self-defense. (Tackett,
supra, 144 Cal.App.4th at
p. 454.) Evidence of the victim’s
violent character can be relevant in two ways:
(1) the defendant’s knowledge of the victim’s violent character
tends to show the defendant’s apprehension the victim would harm him or her was
reasonable; and (2) if the defendant did not know about the victim’s
violent character, evidence of that character nonetheless tends to show the
victim was probably the aggressor.
(1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence,
§ 59, p. 437.) The victim’s
violent character, however, is irrelevant unless there is “some evidentiary
support for a self-defense-type theory that the defendant perceived the
. . . victim as presenting an immediate
threat. . . . [E]ven if
the murder victim were the most violent person in the world, that fact would
not be relevant if the evidence made it clear that the victim was taken by
surprise and shot in the back of the head.”href="#_ftn3" name="_ftnref3" title="">[3] (People
v. Hoyos (2007) 41 Cal.4th 872, 912-913 (Hoyos); see also People v.
Gutierrez (2009) 45 Cal.4th 789, 828 (Gutierrez) [“Where no evidence is presented that the victim posed a
threat to the defendant, exclusion of evidence regarding the victim’s
propensity for violence is proper”].)

The
trial court may exclude evidence of a victim’s character that is otherwise
admissible under section 1103 “if admitting the evidence would have
confused the issues at trial, unduly consumed time, or been more prejudicial
than probative.” (Gutierrez, supra,
45 Cal.4th at pp. 827-828; Hoyos,
supra, 41 Cal.4th at
pp. 912‑913.) Under section
352, “the trial court enjoys broad discretion in assessing whether the
probative value of particular evidence is outweighed by concerns of undue
prejudice, confusion, or consumption of time.”href="#_ftn4" name="_ftnref4" title="">[4] (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The trial court’s “‘exercise of that wide
discretion must not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.’ [Citation.]” (Gutierrez,
at p. 828, original italics; People
v. Fuiava (2012) 53 Cal.4th 622, 663 (Fuiava) [“We review for abuse of discretion a trial court’s ruling
to exclude proffered relevant evidence under . . . section
352”].) Here, the trial court did not
abuse its discretion in excluding evidence regarding the 2006 incident because
the record supports the court’s finding the potential for confusing the issues
and undue consumption of time outweighed the evidence’s “marginal[] probative”
value.

Evidence
regarding Torres’s violent character was generally admissible at trial because
Diaz argued he acted in self-defense when he fought with Torres. (§ 1103, subd. (a)(1).) Diaz’s initial statement to the police
investigator supported his self-defense claim because he told the investigator
Torres pulled a knife and attacked him first.
But Diaz significantly undermined the probative value of Torres’s
violent character when he retracted his self-defense version of the fight. After the police investigator said he did not
believe Diaz’s initial version, Diaz admitted he was the one who pulled the
knife and attacked Torres when Torres insulted him and kicked him in the
shin. Indeed, after the police
investigator questioned Diaz’s initial version, Diaz repeatedly admitted he
stabbed Torres because Torres insulted him and made him angry.href="#_ftn5" name="_ftnref5" title="">[5] Diaz never told the investigator he stabbed
Torres to protect himself or because he feared Torres. Diaz’s admissions he was the aggressor
undermine his self-defense claim and the probative value of any evidence
regarding Torres’s violent character.
(See Gutierrez, >supra, 45 Cal.4th at p. 828
[victim’s character irrelevant without evidentiary support for self‑defense
claim]; Hoyos, supra, 41 Cal.4th at pp. 912-913 [same].)

Moreover,
the lack of similarity between the 2006 incident and Torres’s fight with Diaz
further diminished the 2006 incident’s probative value as character evidence of
Torres’s violent propensity. (See >People v. Wright (1985) 39 Cal.3d
576, 586‑587 [lack of similarity between the crime at issue and the prior
violent incident undermined the prior incident’s probative value as character
evidence].) The 2006 incident
involved a verbal confrontation during which Torres threatened to shoot his
landlord’s son when he attempted to turn off Torres’s electricity. Torres did not hit, grab, stab, shoot, or
otherwise have any physical contact with the landlord’s son and apparently made
the threat to stop the landlord’s son from turning off the electricity. The incident here involves a fistfight and
stabbing that occurred when Torres insulted Diaz while they were drinking beer
together. Although the 2006 incident
generally was admissible as character evidence, it had little probative value
in showing Torres was the aggressor who started the fight with Diaz because
there was no physical fight between Torres and the landlord’s son in 2006.

Considering
the 2006 incident’s marginal probative value, the trial court properly weighed
concerns regarding whether evidence of that incident would confuse the issues
and unduly consume time. Admitting
evidence regarding the 2006 incident would have required a mini-trial on
precisely what happened in 2006 because the parties disputed many of the facts
surrounding the dispute. For example,
the prosecutor argued the landlord’s son never saw a gun and no weapons were
found at the scene. Diaz asserted the
landlord’s son saw a gun, but did not know whether it was real, and the police
found two pellet guns at the scene. Diaz
also claimed the evidence would show Torres made additional threats to the
landlord’s son and instructed his own son to assault the landlord’s son. Finally, the prosecutor argued Torres was not
convicted of a crime for the 2006 incident, but Diaz claimed the case against
Torres “settled” on a charge of disturbing the peace.

If
the trial court admitted the 2006 incident, the jury would have been required
to hear the conflicting evidence, resolve the various conflicts, and decide
what Torres actually did before considering whether Torres’s 2006 conduct
had any impact on its decision regarding Diaz’s self-defense claim. The trial court did not abuse its discretion
in finding this mini-trial could confuse the issues and unduly consume time,
especially when balanced against the marginal probative value of the
evidence. (See Fuiava, supra,
53 Cal.4th at pp. 665-666 [need to conduct trial regarding prior
incidents offered as character evidence justified trial court’s decision to
exclude evidence under section 352]; People
v. Hamilton (2009) 45 Cal.4th 863, 930 [need for “‘a mini-trial’” on
character evidence justified its exclusion under section 352].)

Diaz
contends evidence of the 2006 incident had more than marginal probative value
because Torres’s threat to his landlord’s son, “You think you’re the first
person I’ve killed,” corroborated Diaz’s statement to the police investigator
that he carried his pocketknife when he drank beer with Torres because he heard
Torres had killed a man in Mexico. This
argument fails. Whether the 2006
incident provided corroboration for part of Diaz’s statement to the
investigator does not affect the probative value of evidence regarding the 2006
incident. The prosecutor did not dispute
Diaz made the foregoing statement to the police investigator and additional
evidence to “corroborate” that statement would be duplicative. More importantly, Diaz did not raise this
theory of admissibility in the trial court.
Nor does this argument change Diaz’s admission he attacked Torres
because he was angry at Torres, not because he was afraid of him. Diaz’s knowledge that Torres allegedly killed
a person in Mexico is irrelevant without evidence Diaz stabbed Torres because
he was afraid Torres was about to kill him or cause him great bodily
injury. (See Gutierrez, supra,
45 Cal.4th at p. 828 [the defendant offering evidence of the victim’s
character must provide evidence to support a self-defense claim before that
character evidence is relevant]; Hoyos,
supra, 41 Cal.4th at
pp. 912-913 [same].)

Diaz
also disputes the trial court’s conclusion that presentation of evidence
regarding the 2006 incident would consume an undue amount of time. According to Diaz, he would have called just
three witnesses — his landlord’s son, Torres’s wife, and Torres’s son — to
present evidence of the 2006 incident.
Diaz argues this could not be considered an undue consumption of time
given that the prosecution called a dozen witnesses to present its case and
Diaz faced a potential life sentence.
Diaz, however, fails to explain how long it would have taken these
witnesses to testify nor does he account for the witnesses the prosecution
would have called to rebut Diaz’s evidence.
Diaz’s unsupported conclusion the evidence would not have been unduly
time consuming does not establish the trial court abused its discretion.

Finally,
Diaz contends the trial court’s exclusion of the 2006 incident violated his due
process rights. He is mistaken. “A defendant has the general right to offer a
defense through the testimony of his or her witnesses [citation], but a state
court’s application of ordinary rules of evidence — including the rule stated
in . . . section 352 — generally does not infringe upon this right
[citations].” (People v. Cornwall (2005) 37 Cal.4th 50, 82, disapproved on
other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)
Diaz provides no explanation how excluding evidence regarding the 2006
incident under section 352 rose to the level of a due process violation. (See, e.g., Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1074 [appellant forfeited challenge by failing to present reasoned
argument and explanation].)

III

Disposition

The judgment is affirmed.







ARONSON,
J.



WE CONCUR:







O’LEARY, P.
J.







BEDSWORTH, J.