P. v. Moreno
Filed 7/28/10 P. v. Moreno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent, v. EDGAR DIZON MORENO, Defendant and Appellant. | B214907 (Los Angeles County Super. Ct. No. VA107123) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Edgar D. Moreno appeals from the judgment entered following a jury trial in which he was convicted of assault with a firearm and discharge of a firearm with gross negligence. Defendant contends that the trial court erred in admitting irrelevant evidence in violation of due process. We affirm.
BACKGROUND
Jeremy Koehler owned a residence in Cerritos and allowed defendant to reside in the home without paying rent because defendant and Koehler were good friend[s]. On August 22, 2008, defendant and Koehler argued in the home. Shortly after the argument, another resident of the Koehler home, Paul Weidmann, heard the sound of a gunshot. Weidmann later examined the scene of the argument and found a bullet.
The next day, August 23, 2008, Koehler and Weidmann visited Joan Baums house. During the visit, Koehler received a phone call from defendant and afterward went outside the home with Weidmann. Weidmann saw defendants van approach the Baum residence and Weidmann returned to the home. There, Weidmann heard defendant and Koehler arguing outside. Before long, Weidmann heard two gunshots and saw Koehler limping into the house with a bleeding left knee.
Thereafter, defendant was arrested. Defendant admitted to Detective Aaron King that he fired at Koehler on August 22 and that he shot Koehler on August 23.
On February 4, 2009, before the trial, the defense moved to exclude evidence of defendants alleged gang involvement. The trial court ruled that the evidence was irrelevant unless the witnesses recanted or were reluctant to testify, in which case it could be admitted only to show the witnesses state of mind, but not that defendant is a gang member.
Koehler, a convicted felon who was serving time in the state prison, testified under immunity. Although Koehler agreed to testify, he stated, Id rather be where I was [prison], and Id rather not be here. For the remainder of his testimony, Koehler claimed that he did not remember what happened on August 22 and August 23 or what he told Detective King because he was under the influence of Percocets and methamphetamines. Prior to his appearance in the trial court, Koehler was willing to discuss the events leading to his injury. Koehler told Detective King that he got into an argument with Mr. Moreno, and that Mr. Moreno had armed himself with a handgun. Detective King testified that Koehler told him that defendant did not drop the handgun [and] instead raised it again, pointing it at [Koehler], discharged it again, firing one round, which struck Mr. Koehler in the left knee. Nevertheless, at trial, Koehler insisted that he did not remember what happened.
Outside the presence of the jury, the prosecutor notified the trial court that he intended to question Koehler on snitches and Koehlers prior statements regarding his fears as they related to Koehlers reluctance to testify. The defense requested that the prosecutor ask the questions out of the jurys presence. The trial court denied the request and stated it would admonish the jury to consider Koehlers testimony only as indicative of his state of mind.
In response to questions regarding snitching, Koehler testified that a snitch was someone who [told] on somebody and admitted that snitches could potentially face bodily harm. The prosecutor asked Koehler if he had admitted in the presence of . . . Detective King that you [Koehler] were unable to testify against the defendant because you were in fear for your [sic] and your mothers safety due to the fact that the defendant was a known gang member? The defense objected and was overruled. Koehler answered that he did not recall if he said that. Undeterred, the prosecutor asked Koehler, [D]id you also say that you were going to do what you had to do to protect yourself and your mother? Koehler answered, I dont recall. That sounds like a statement I would make. I would protect my mother and me, yes. At this point, the trial court admonished the jury that there is no evidence that the defendant is a gang member. The People are not contending that fact. And the evidence that has just been allowed in, the question and the answer, are admissible solely for you to consider this witnesss state of mind, not for any other purpose. You may not assume or conclude that the defendant is in fact a gang member. There is no evidence to that effect.
Detective King confirmed Koehlers statement regarding the dangers of snitching and testified that Koehler said he was in fear for his and his mothers safety because of the fact that [defendant] was a known gang member, and [h]e said he would do what he had to dohe was going to do what he had to do to protect his family. The defense objected on the grounds of hearsay and relevancy and was overruled. The trial court stated, It is my understanding that the People have no evidence that hes a gang member. They do not contend that he is a gang member. And the statement is admissible solely for the purpose of indicating Mr. Koehlers state of mind at the time the statement was made by him, for no other purpose.
The defense offered no evidence apart from a stipulation that Koehler had suffered two prior convictions for crimes of moral turpitude.
In closing argument, the prosecutor argued that Koehler did not want to testify because he was afraid of being considered a snitch by fellow prison inmates. Neither the prosecution nor the defense mentioned gangs in their arguments.
The jury instructions cautioned jurors that [c]ertain evidence was admitted for a limited purpose. [] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [] Do not consider this evidence for any purpose except the limited purpose for which it was admitted. (CALJIC No. 2.09.)
The jury convicted defendant of assault with a firearm and of discharging a firearm with gross negligence. Defendant admitted prior convictions and prison term enhancement allegations. The trial court sentenced defendant to 17 years 8 months in prison.
This appeal followed.
DISCUSSION
Defendant contends the trial court erred by admitting the evidence about his gang affiliation because it was irrelevant. He further contends that admission of this evidence violated due process.
Evidence Code section 350 states that only relevant evidence is admissible. Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) Unless precluded by statute, evidence that goes toward proving or disproving witness credibility is relevant and admissible. (Evid. Code, 406, 780;People v. Hawthorne (2009) 46 Cal.4th 67, 99; People v. Dreas (1984) 153 Cal.App.3d 623, 634.) Such relevant evidence includes a witnesss (1) motives for testifying or not testifying, (2) previous statements before and during the hearing, or (3) attitude when providing the testimony. (Evid. Code, 780, subds. (f)(h) & (j).)
Admitting relevant evidence does not offend due process unless (1) the evidence is so prejudicial as to render the trial fundamentally unfair or (2) the jury cannot draw a permissible inference from the evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Cunningham (2001) 25 Cal.4th 926, 998.) The relevant inquiry is whether admission of the evidence in question was so extremely unfair as to violate fundamental conceptions of justice. (Dowlingv.United States (1990) 493 U.S. 342, 352, 110 S.Ct. 668.) Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. We, therefore, have defined the category of infractions that violate fundamental fairness very narrowly. (Id. at p. 353.)
When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly. (Evid. Code, 355.) It is proper to presume that the jury followed the limiting instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725.) An erroneous admission of the evidence does not require reversal unless it is reasonably probable defendant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, 353, subd. (b); Peoplev.Earp (1999) 20 Cal.4th 826, 878; Peoplev. Watson (1956) 46 Cal.2d 818, 836.)
Here, Koehlers testimony regarding his fear for his and his mothers safety was relevant because it provided the jury with insight into Koehlers motive for being reluctant to testify about the events leading to his injury. Although Koehler was forthcoming before trial regarding defendants conduct, at trial he was reluctant to testify against defendant and stated that he could not remember what had happened. When the prosecutor asked Koehler if defendants gang affiliation had any bearing on Koehlers reluctance to testify, Koehler suggested that he was afraid for his and his mothers safety by stating that he would do anything to protect them. Koehlers testimony offered a reasonable explanation for his unwillingness to testify against defendant. The evidence was relevant to Koehlers credibility and, thus, admissible under Evidence Code sections 210 and 780 for this limited purpose. For the same reason, Detective Kings testimony was also relevant. The trial court did not err by admitting this testimony.
The testimony in issue did not violate defendants due process rights because the prejudicial effect of the evidence did not render the trial unfair and the jury could draw a permissible inference from the evidence. Although a gang reference carries a risk of prejudice, that risk was neutralized by (1) the brevity of the references; (2) the trial courts thorough admonitions to the jury regarding the limited purpose of the evidence; (3) the jury instruction to use the evidence only for the specified purpose; and (4) the prosecutors argument attributing Koehlers reluctance to testify to fear of being a snitch rather than to fear of defendants gang membership. Given these circumstances, it is reasonable to presume that the jury followed the trial courts instructions. (People v. Waidla, supra, 22 Cal.4th at p. 725.) Finally, the jury could draw a permissible inference from the evidence that Koehlers disinclination to testify was from his fear of being considered a snitch. Thus, the admitted evidence did not violate defendants due process rights.
Even if the trial court erred in admitting the evidence, the error was harmless. The combination of the trial courts admonishments to limit the use of the evidence, the jury instruction, the prosecutorial use of the evidence in argument, and the brevity of the evidence mentioning gangs makes it unlikely that the jury would have misconstrued the evidence in a manner prejudicial to defendant. (See Cal. Const., art. VI, 13; Peoplev. Watson, supra, 46 Cal.2d at p. 836; Peoplev.Earp, supra,20 Cal.4th at p. 878.) Hence, it is not reasonably probable that the jury would have arrived at a different verdict for defendant even if the trial court excluded the evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
JOHNSON, J.
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