P. v. Negroni
Filed 9/10/13 P. v. Negroni CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
RALPH CHARLES NEGRONI,
Defendant
and Appellant.
E055247
(Super.Ct.No. INF10001557)
OPINION
APPEAL from the Superior
Court of
County. Graham Anderson
Cribbs, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Denise M. Rudasill, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Lilia E. Garcia, Lynne McGinnis, Felicity Senoski, and Linh
Lam, Deputy Attorneys General, for Plaintiff and Respondent.
In early 2010, defendant Ralph Charles Negroni leased a house in
Desert Hot Springs with his wife, Emilia Negroni. However, by June 2010, he had moved out of
the residence into another apartment due to marital problems. On June 28, he came to the home and saw
through a bedroom window Emilia using methamphetamine with another man in her
bedroom. Defendant threw a rock through
the window, entered the bedroom, and beat up Emilia.
Defendant was convicted of
subdivision (a)). The special allegation
that someone other than an accomplice was present during the burglary (§667.5,
subdivision (c)(21)) was found true.
Defendant was granted three years of formal probation with 60 days in
the custody of the Riverside County Sheriff’s Department in the work
program.
Defendant now contends on appeal as
follows:
1. The
trial court erred and violated his federal constitutional rights to due process
and to confront witnesses against him by admitting Emilia’s hearsay statement
made to a responding officer since she did not testify at trial and was
therefore unavailable for cross-examination.
2. His
conviction of first degree burglary must be reversed for insufficiency of the
evidence because he had a possessory interest in the home.
3. The
trial court violated his federal constitutional rights by excluding defense
evidence.
We affirm the judgment.
I
FACTUAL BACKGROUND
A. People’s
Case-in-Chief
Emilia and defendant were married.
Emilia refused to testify at trial.
Jessica Ortiz was Emilia’s cousin.
On June 28, 2010,
Jessica had been living with her son at Emilia’s house located on Foxdale
Drive in Desert Hot Springs (the Foxdale house)
for a “couple†of months. Defendant had
moved out of the Foxdale house to a different apartment but would come visit
the two children he had with Emilia.
Sometime around 10:00 p.m.
on June 28, Jessica was giving her son a bath.
A friend of Emilia’s, who was identified as “Jessie,†was also at the
house but did not live there.
name="_ftnref3" title="">[3] Jessica had seen Emilia and Jessie in
Emilia’s bedroom together prior to giving her son a bath.
Jessica heard a loud crash. She
then heard defendant and Emilia yelling at each other in Emilia’s room. Jessica heard Emilia yell for defendant to
stop. Emilia had her door locked so
Jessica could not see what was happening or get the door open. Jessica never saw Jessie after this. Emilia emerged from the room and was
bloody.
Jessica went to the front yard because she was afraid. She wanted to call the police but did not
have a phone. Emilia emerged from the
house and was covered in blood.
Defendant was with her and was yelling at her to find his “stuff.†Emilia was trying to get away from
defendant. Defendant ran after her. Defendant grabbed Emilia’s hair and threw her
to the ground.
Defendant’s cousin, Alejandro Ortiz, arrived at the house. Earlier that evening, Alejandro had seen cars
at the Foxdale house belonging to people of whom he did not approve and whom he
called “thieves.†Alejandro went to
defendant’s apartment and told him that these people were at the house.
Alejandro insisted that when he arrived at the Foxdale house he did
not to see any injuries to Emilia.
Jessica observed Alejandro get between defendant and Emilia. Emilia went back in the house. Emilia was afraid that defendant would come
back in the house and attack her.
When the police arrived, Emilia had walked back outside and was near
the garage. Defendant told Emilia not to
say anything to the police. He told her
that if he went to jail, she would go to jail.
Desert Hot Springs Police Captain David O’Dowd was on duty on June 28, 2010. Desert Hot Springs
police received a 911 call with a female screaming in the background. No one spoke on the line but Captain O’Dowd
was able to trace the call to the Foxdale house. When Captain O’ Dowd arrived, he observed
defendant and Emilia in front of the house.
Defendant had a laceration over his left eye, and his hand was
bleeding. He immediately put his hands
behind his back. Defendant told Captain
O’Dowd that he injured his hand on the broken glass from the door. The wounds appeared to be caused by glass and
not a fist fight. Defendant was
handcuffed, and Deputy O’Dowd went to speak with Emilia. Emilia was crying. She had blood on her face and several facial
injuries.
Captain O’Dowd asked Emilia
what had happened. Emilia told Captain
O’Dowd, “My husband beat me up.†Based
on this information and Emilia’s injuries, he called an ambulance. Emilia was taken by ambulance to the
hospital.
Captain O’Dowd searched the
bedroom. He found a large rock on the
floor in the bedroom. A window in the
door leading to the outside was broken.
There was glass and blood throughout the room. A small baggie containing what looked like
methamphetamine was lying on the bed.
Emilia was uncooperative and would not tell Captain O’Dowd who the other
male was in the house.
Defendant voluntarily spoke with Captain O’Dowd at the scene. He told Captain O’Dowd that his apartment had
been burglarized the prior night, and he came to Emilia’s house to see if any
of his property was at the location. He
arrived and looked in the bedroom window.
He observed Emilia smoking “crack†with another male. Defendant said that he “lost it†and threw a
rock through the window. He told Captain
O’Dowd that he “fucked up†and hit Emilia.
Defendant was arrested and transported to the police station. At the station, defendant told Captain O’Dowd
again that he had broken the window and then hit Emilia. Defendant did not know how his face got
cut. Defendant never claimed at the
scene or at the police station that the male in the bedroom had attacked or hit
him. Defendant never claimed that he
lived in the Foxdale house.
Captain O’Dowd recalled that he had responded to the burglary reported
by defendant. A laptop and some guns had been stolen from
defendant. Captain O’Dowd saw Emilia the
next day. Her nose was swollen, she had
lacerations, and both of her eyes were black and blue.
Jessica did not pay rent on the Foxdale house. She moved out the day following the
incident. Jessica did not want to
testify against defendant because she cared for him. The parties stipulated that defendant and
Emilia entered into a lease agreement for the Foxdale house on March 2,
2010. The period of the lease was from
April 1, 2010, to March 31, 2011.
B. Defense
Defendant moved out of the Foxdale house because they were having
marital problems. By June 28, he had
been living in another apartment for a “[c]ouple†of months. Defendant kept “possessions†at the Foxdale
house, he still had keys, and he went over to the house to see his children and
to have meals. He claimed that he and
Emilia were still engaging in sexual relations.
On June 27, 2010, sometime while he was at work, his apartment was
broken into. His television, laptop, and
guns were missing. Captain O’Dowd
responded to his report of the incident.
On June 28, defendant had the two children at his apartment. Alejandro came to defendant’s apartment and
told him there were some “bad people†at the Foxdale house. Alejandro told him they were people who
burglarized homes. Defendant went to the
Foxdale house around 9:00 or 10:00 p.m.
He saw several unfamiliar cars in the driveway. He went to the back of the house. He did not enter the house in the front
because he thought if he knocked on the door, the inhabitants would conceal
what was going on in the house.
Defendant looked into the living room window and saw three males and
one female he did not recognize. One of
the males and Emilia went into the master bedroom. Defendant went to the master bedroom
door. He observed Emilia lock the inside
door to the bedroom. The male had a pipe
and a lighter and was about to smoke the pipe when Emilia took the pipe from
him. The male pushed her. At that point, defendant threw a rock through
the bedroom window.
Defendant put his hand through a hole the rock made and unlocked the
door. Defendant did not use his key
because the bedroom door did not have a keyed entry from the outside. As defendant entered, the male rushed at him
and hit him in the face. They started
fighting. Defendant’s eye was cut. Emilia tried to break up the fight. Defendant started swinging “wildly.†Defendant believed at some point during the
fight he accidentally hit Emilia.
Emilia eventually ran out the door.
The male also ran out the door.
Defendant chased after Emilia, yelling at her for being with another
man, using drugs, and being involved in taking the items from his
apartment. Emilia promised to call the
person who had the items. Emilia was looking
for her telephone, and defendant kept following her. He said nothing about her bleeding or being
hurt.
Emilia then apologized to defendant.
She then threatened that if the male who was with her got in trouble,
defendant would never see his children again.
Defendant took the threat seriously.
He did not want his children living with her in a “drug-infested
house . . . .†At
one point, Emilia started to walk away from defendant; he grabbed her collar,
and she fell to the ground. He did not
throw her to the ground.
Defendant admitted he told
Captain O’Dowd that night that he had beat up Emilia. Defendant lied to Captain O’Dowd because he
was afraid Emilia was going to take the children away if her “friend†got in
trouble.
II
VIOLATION OF FEDERAL CONSTITUTIONAL RIGHT
TO CONFRONT WITNESSES
Defendant contends on appeal that his right to confront the witnesses
against him under the federal Constitution and as stated in
was violated by the admission of a statement made by Emilia (who did not
testify at trial) to Captain O’Dowd that defendant beat her up.
A.
Emilia was called to testify at the
preliminary hearing and refused to testify.
Prior to trial, on October 13, 2011, the People notified the trial court
that Emilia was unwilling to testify pursuant to Code of Civil Procedure
section 1219, subdivision (b).
name="_ftnref4" title="">[4] The trial court found that Emilia was an
unavailable witness.
The prosecutor at trial asked
Captain O’Dowd what Emilia had told him had happened to her. Defendant objected on hearsay grounds. The prosecutor stated, “Present impression,
your Honor.†The objection was
overruled. Captain O’Dowd
testified
that she said, “My husband beat me up.â€
Defense counsel orally brought a mistrial motion based on the inability
to cross-examine Emilia. The trial court
denied the motion.
Defendant filed a formal request for
mistrial on October 14, 2011. He argued
that admission of Emilia’s statements to police violated Crawford. He argued the
statements made by Emilia were testimonial because they alleged that defendant
hit her. Defendant had no opportunity to
confront her, and this violated his federal constitutional rights.
The trial court believed the issue
came down to whether the statements were trustworthy or reliable. The trial court found Emilia’s statements
were excited utterances. They were not
testimonial. The mistrial motion was
denied.
B.
“The confrontation clause of the
Sixth Amendment to the United States Constitution bars the admission of
out-of-court testimonial statements except when both the witness is unavailable
and the defendant had a prior
opportunity to cross-examine the witness.
[Citation.]†(
483, 494, citing to Crawford v.
Washington, supra, 541 U.S. at pp. 61-68.)
In Davis v. Washington (2006)
547 U.S. 813, 817, the United States Supreme Court clarified what is meant by
testimonial statements. It explained:
“ . . . Statements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.†(
The United States Supreme Court recently addressed the issue again and
stated that “not all ‘interrogations by law enforcement officers’ [citation],
are subject to the Confrontation Clause.â€
(Michigan v. Bryant (2011) ___
U.S. ___ [131 S.Ct. 1143, 1153, 179 L.Ed.2d 93], fn. omitted.) The California Supreme Court in
769, 814, interpreted Bryant to
provide that the following factors should be considered in determining the
primary purpose with which a statement is given by the declarant or obtained by
law enforcement:
“(1) The court must objectively evaluate the circumstances of the
encounter along with the statements and actions of the parties. In this latter regard, ‘the relevant inquiry
is not the subjective or actual purpose of the individuals involved in a
particular encounter, but rather the purpose that reasonable participants would
have had, as ascertained from the individuals’ statements and actions’ in the
given situation. [Citation.] [¶] . . . [¶]
“(2) The court should consider whether an ‘“ongoing emergencyâ€â€™
exists, or appears to exist, when the statement was made. Such an ongoing emergency focuses the
participants on something other than obtaining evidence for trial. [Citation.]
Again, the analysis is objective.
Even if hindsight reveals that an emergency did not, in fact, exist, if
it reasonably appeared to exist based on the information known when the
statement was made the emergency test is satisfied. [Citation.]
[¶] . . . [¶]
“(3) Whether an ongoing emergency exists is a ‘highly
context-dependent inquiry.’
[Citation.] Even when a threat to
an initial victim is over, a threat to first responders and the public may
still exist. The type of weapon involved
may expand or limit the duration and scope of the emergency. A situation created by the use of fists may
involve less ongoing danger than the use of a firearm. [Citation.]
“(4) The medical condition of the declarant is a relevant
consideration, as it bears on both the injured declarant’s purpose in speaking
and the potential scope of the emergency.
[Citation.] As the high court
describes it, the declarant’s medical condition ‘sheds light on the ability of
the victim to have any purpose at all in responding to police questions and on
the likelihood that any purpose formed would necessarily be a testimonial
one.’ [Citation.]
“(5) A nontestimonial encounter addressing an emergency may evolve,
converting subsequent statements into testimonial ones. A real or apparent emergency may resolve
itself. The disarming or capture of a
perpetrator may end the danger. It may
become clear from the declarant’s and officer’s statements or behavior that the
focus has shifted from meeting the emergency to obtaining evidence for
trial. [Citation.]
“(6) Finally, regardless of the existence of an emergency, the
informality of the statement and the circumstances of its acquisition are
important considerations.†(
at pp. 813–815.)
“On appeal, we independently
review whether a statement was testimonial so as to implicate the
constitutional right of confrontation.
[Citation.]†(
1453, 1466.)
This case is similar to People
v. Saracoglu (2007) 152 Cal.App.4th 1584.
In that case, the victim came to the police station after her husband
choked her, pushed her, hit her, and threatened to kill her if she called the
police. (Saracoglu,. at pp. 1587,
1598.) In determining whether the
victim’s statements at the police station regarding the beating should be
admitted at trial, the court concluded that, “[f]aced with an obviously
distraught woman, who was crying, shaking and very afraid, [the officer’s]
primary purpose was to ascertain what was going on. In doing so, [he] elicited the information he
needed to understand [the victim’s] situation and to take action ‘to
These circumstances show the primary purpose of [the officer’s]
interrogation was not to ‘establish or prove past events potentially relevant
to a later criminal prosecution’ [citation], but rather ‘to enable police
assistance to meet an ongoing emergency’ [citation] . . . . [¶]
[The victim’s] account to [the officer] of having been assaulted and
threatened by [the defendant] was nontestimonial within the meaning of
[the defendant’s] trial was not a confrontation clause violation.†(Id. at
p. 1598.)
Here, the Desert Hot Springs Police Department received a 911 call
wherein no one spoke, and a woman was heard screaming. The call was traced to the Foxdale
house. When Captain O’Dowd arrived, he
observed Emilia and defendant in front of the house. Emilia was bleeding and had lacerations on
her face. Defendant had a cut on his
eye, and his hands were bloody. Emilia
was crying. Defendant immediately put
his hands behind his back and was handcuffed.
Despite defendant being placed in handcuffs, at that point, Captain
O’Dowd was unaware what had occurred at the scene. Several cars were in the driveway. Jessica and Alejandro were at the house. Emilia was bleeding. It was unclear if other persons were
involved. At that time, viewed
objectively, Captain O’Dowd could be concerned there was an ongoing
emergency. He quickly asked Emilia what
had happened, and no follow-up questions were asked.
Taking into account the factors set out in Bryant, the statement made by Emilia that defendant had beat her up
was not testimonial. Captain O’Dowd
could reasonably consider that there was an ongoing emergency and could inquire
of the victim what had happened in order to assess what further action needed
to be taken. As such, Emilia’s statement
to Captain O’Dowd did not constitute testimonial hearsay and was properly
admitted by the trial court.
Defendant contends there was no ongoing emergency because defendant
put his hands behind his back and was handcuffed prior to the inquiry by
Captain O’Dowd. In hindsight, this may
be true. However, even if hindsight
reveals that an emergency did not exist, if it reasonably appeared to exist
based on the information known when the statement was made, the emergency test
is satisfied. (People v. Blacksher, supra, 52 Cal.4th at p. 814.) Here, Captain O’Dowd was faced with Emilia,
who was crying and bleeding. Defendant
had a cut and blood on his hands, and there several other cars and people at
the house. Captain O’Dowd could
reasonably be concerned that there was an ongoing threat.
Even if the trial court erred by admitting Emilia’s statement to
Captain O’Dowd, such error was harmless beyond a reasonable doubt. (People
v. Cage (2007) 40 Cal.4th 965, 991-992; see also Chapman v. California (1967) 386 U.S. 18, 36; People v. Banos, supra, 178 Cal.App.4th at p. 504 [assessing
admission of testimonial statement under harmless beyond a reasonable doubt
standard].)
Here, other evidence established that defendant caused the injuries to
Emilia. Jessica heard a loud crash and
then heard Emilia telling defendant to stop.
They then emerged from the bedroom, and Emilia was bleeding. Defendant chased after Emilia. He threw her to the ground. Jessie, the male who had been at the house,
was no longer around. This was strong
circumstantial evidence that defendant caused the injuries to Emilia.
Moreover, when Captain O’Dowd arrived, defendant immediately put his
hands behind his back to be handcuffed.
Defendant told Captain O’Dowd at the scene that he had seen Emilia in
the bedroom with another man and “lost it.â€
He admitted that he threw a rock through the window and rushed in. He admitted he hit Emilia. Defendant repeated the same story at the
police station. Defendant’s statements
were consistent with the evidence at the scene.
Based on the evidence presented, even if Emilia’s statement to Captain
O’Dowd had been excluded, reversal would not be required.
III
SUFFICIENT EVIDENCE OF BURGLARY
Defendant contends that there was
insufficient evidence that he committed first degree burglary because he had a
possessory interest in the Foxdale house.
He could not commit burglary at his own home.
“Our task is clear. ‘On appeal
we review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence ‑‑ that
is, evidence that is reasonable, credible, and of solid value ‑‑ from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the
appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.â€â€™ [Citations.]â€
[Citation.]’ [Citations.] The conviction shall stand ‘unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].â€â€™
[Citation.]†(
507-508.)
“Section 459 provides in pertinent
part: ‘Every person who enters any
house, . . . with intent to commit grand or petit larceny or any felony is
guilty of burglary.’ The statute retains
two important aspects of common law burglary:
‘the entry must invade a possessory right in the building and it must be
committed by one who has no right to be in the building. [Citation.]
Because the crime of burglary requires the invasion of a possessory
right in a building, one cannot be found guilty of burglarizing one’s own
residence.’ [Citation.]†(People
v. Gill (2008) 159 Cal.App.4th 149, 158-159.)
In People v. Gauze (1975) 15
Cal.3d 709, 714, the Supreme Court confirmed that one cannot commit a burglary
of his own home because he has a possessory right of habitation. A burglary can be committed only by a person
who does not have any right to be in the building. In Gauze,
defendant was a cotenant in the apartment in which the incident occurred and
the Supreme Court reversed the burglary conviction due to his right of
occupancy in the apartment. (
Other cases have recognized that whether the accused has a possessory
right in a property is a factual question to be resolved by the jury. In People
v. Ulloa (2009) 180 Cal.App.4th 601 [Fourth Dist., Div. Two], the victim
and the defendant were married, and both signed a lease for the apartment in
which the incident occurred. However,
there was substantial evidence presented that at the time of the incident the
victim and defendant were separated, and the defendant was living elsewhere. (Id.
at pp. 604-605, 607.) The appellate court
rejected the defendant’s contention that he could not be convicted of burglary
because he was a tenant under the lease:
“Here, there was evidence defendant and [the victim] were estranged and
separated due to having serious marital problems; defendant had voluntarily
moved out of the apartment; defendant had committed prior domestic violence
against [the victim]; and [the victim] feared defendant. Also, because defendant yelled at [the
victim] from outside the apartment at 5:00 a.m. and broke in, a reasonable
inference could be drawn that defendant no longer had a key to the apartment
and entered without [the victim’s] consent, with intent to commit theft or some
other crime. Under such circumstances
there was sufficient evidence supporting a finding that defendant did not have
an unconditional possessory interest in the apartment. We thus conclude the apartment lease did not
constitute a complete defense to burglary and there was sufficient evidence
supporting defendant’s burglary conviction.â€
(Id. at p. 610.)
In People v. Davenport (1990)
219 Cal.App.3d 885, the defendant and his wife lived in a cabin owned by the
wife’s parents, who also lived in the cabin.
Defendant moved out but his wife continued to live there. The defendant returned his keys. He left some personal property at the cabin
and was told by his wife to meet with her to pick it up. He did not have permission to enter the cabin
unaccompanied. However, defendant and a
friend drove to the cabin to pick up his property when no one was there and
broke in. They also took items belonging
to the wife and the wife’s mother. (
he appealed on the ground that he had an unconditional right to enter the cabin
because his wife lived in the cabin. The court rejected his argument, finding
that substantial evidence supported a conclusion that the defendant had no
right, or at best, a conditional right, to enter the cabin. It relied on evidence that he and his wife
had been separated for several months; the wife had no ownership interest in
the cabin; the owner of the cabin had asked the defendant to return his keys,
and he had done so; and his wife had told him not to pick up his personal
property unless she was there. (
Although there was no evidence of prior incidents of spousal abuse, or
expressed fear of defendant by Emilia as in Ulloa,
the evidence did support that defendant and Emilia were estranged at the time
of the incident. Defendant not only had
moved out, Jessica had moved into the house two months prior to this
incident. Defendant had leased another
apartment. Despite the fact that
defendant may have visited the house to see his children and maybe have had
sexual relations with Emilia, there was no evidence he had a right to be in the
house uninvited or when Emilia was not present.
Defendant, despite claiming to have a key, broke through a window to
gain access. Based on the foregoing, the
jury reasonably could conclude that defendant did not have an unconditional
right to enter the Foxdale house.
Moreover, although not discussed by the parties, defendant did not
have a key to the bedroom door. He
observed that Emilia locked the door to the bedroom on the inside, and Jessica
testified that the inside door to the bedroom had a deadbolt. Even if defendant had some possessory
interest in the house, he certainly could not reasonably believe that he had a
right to enter the bedroom of his estranged wife when she locked both doors to
the room. He threw a rock through a
window to gain access to the bedroom, the only possible access to the
bedroom. In People v. Abiliez (2007) 41 Cal.4th 472, a case upholding a
conviction for burglary of a room in a house in which the defendant resided,
the court held, “The jury could have concluded that, under the circumstances,
defendant at that time lacked the victim’s consent to enter her bedroom; that
he may have had a possessory right to enter the home does not preclude a
conviction for burglary on these facts.â€
(Id. at p. 509.) Defendant entered the home through the master
bedroom to which he had no operable key.
The inside door was locked which would prevent entry to the room if he
had entered the house. The jury
reasonably could conclude he did not have a right to enter Emilia’s bedroom.
Sufficient evidence supported that
defendant no longer had an unconditional right to enter the Foxdale house at
the time that he committed the corporal injury to Emilia. As such, he was properly convicted of first degree
burglary.
IV
EXCLUSION OF DEFENSE EVIDENCE
Defendant claims that the exclusion
of evidence that he sought to admit in his defense violated his federal
constitutional rights. First, he
contends the trial court should have allowed him to introduce evidence that he
was paying rent on the Foxdale house to show he had a possessory interest in
the house. Second, he claims he should
have been allowed to introduce evidence pertaining to Emilia coming to his home
after the incident and feigning that defendant injured her.
A. Additional
Factual Background
Defendant attempted to introduce evidence that he was paying rent on
the Foxdale house even after he moved to another apartment. He first testified that he was legally
evicted from the Foxdale house. Counsel
then asked defendant, “[W]ho was responsible for paying the rent on that
residence?†Defendant responded “I
was.†The trial court interrupted and
stated, “Counsel, that calls for a legal conclusion. They are both on the lease. They are both jointly responsible for it. Okay?
[¶] Thank you. Move on.â€
Counsel then asked if Emilia was employed in June 2010, to which
defendant responded she was not. Counsel
also asked who was generating income in the family. The trial court again interjected, “Counsel,
the Court is going to interject its own objection. That is entirely inappropriate and irrelevant
to what’s going on here. Thank you.â€
During cross-examination of Jessica,
defense counsel questioned her about events that occurred when Emilia visited
Jessica and defendant at an apartment they had moved into as roommates months
after the June 28 incident. Defense
counsel asked Jessica why she had asked Emilia to leave and if anything unusual
occurred while she was there. Objections
to these questions on relevance grounds were sustained.
At the end of the day, a police
report was presented to the trial court.
It detailed that on October 23, 2010, Jessica and defendant reported
that Emilia came to the apartment belonging to defendant and Jessica. Emilia wanted defendant to get back together
with her. When he refused, she told him
that she was going to tell the judge “everything he wants to hear.†Further, she banged her head against the wall
and said, “Don’t do that to me.†Only
Jessica and defendant witnessed this behavior by Emilia. Defendant wanted to call Jessica as a witness
in order to properly cross‑examine her on the incident occurring on
October 23.
The trial court saw the issue as involving Evidence Code section
352. It found that if the police report
was generated by defendant, it was not trustworthy. The trial court further stated, “It [is] a
352 issue, and we are getting far afield with regard to what happened on June
28 of the year 2010.â€
Defendant was concerned that Emilia did not want to testify because
she was afraid that she would incriminate herself; she was lying about what
happened on June 28; and the October 23 incident was relevant to attack her
credibility. The People responded they
had a good faith belief that Emilia was a subject of domestic violence on June
28 and did not have to testify under Code of Civil Procedure section 1219. Defendant’s motion for mistrial and to admit
the evidence was denied.
B. Analysis
Under California law, unless otherwise provided by statute, all relevant
evidence is admissible. (Evid. Code, §
351; People v. Basuta (2001) 94
Cal.App.4th 370, 386.) Relevant evidence
is evidence having any reasonable tendency to prove or disprove a disputed
issue. (Evid. Code, § 210.) However, the trial court has discretion to
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will require undue consumption of time or create
substantial danger of prejudice or of confusing or misleading the jury. (Evid. Code, § 352.) For purposes of Evidence Code section 352,
“probative value†is used interchangeably with the term “relevance†under
Evidence Code section 210. (
29, disapproved on another ground in People
v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
We review the trial court’s determination on admissibility of evidence
for an abuse of discretion, examining the evidence in the light most favorable
to the court’s ruling, and will reverse only if the trial “‘“court exercised
its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.â€â€™ [Citations.]â€
(People v. Ochoa (2001) 26
Cal.4th 398, 437–438.)
As for the payment of rent on the Foxdale house, the trial court reasonably
concluded that it was not relevant. The
jury was already informed that defendant and Emilia signed a one-year lease for
the Foxdale house. The trial court
advised the jury that defendant and Emilia were jointly responsible for the
rent. Despite the lease, defendant moved
into another apartment, and Jessica had moved into the Foxdale house in his
place. As set forth in detail in part
III, ante, defendant did not have an
unconditional right to enter the Foxdale house even though he was on the lease
and responsible for the rent. The fact
that he allegedly paid the rent on the home occupied by his wife and two
children does not change the fact that he moved out and had his own apartment. The trial court did not act arbitrarily or
capriciously in excluding the evidence as irrelevant.
The trial court excluded, under Evidence Code Section 352, the
incident occurring on October 23 as irrelevant and presumably because it would
result in an undue consumption of time.
The October 23 incident had very little relevance to the occurrence on
June 2010. The report was not
trustworthy because it was made by defendant and Jessica. Jessica admitted at trial she did not want to
testify because defendant was like family to her. Moreover, Emilia did not falsify her injuries
on June 28; she was bleeding and had many lacerations. Defendant never contended that he did not
cause the injuries, whether they were accidental or intentional. Evidence that Emilia falsely accused
defendant of hitting her in a separate incident months later was simply not
relevant, would result in an undue consumption of time, and was properly
excluded by the trial court.
Defendant contends that the jury would have had much different view of
Emilia’s credibility through the cross-examination of Jessica. However, based on Emilia’s refusal to testify
and reluctance to speak with Captain O’Dowd, the jury already reasonably could
be suspect of Emilia’s statements and actions.
Moreover, defendant cannot show prejudice by the exclusion of the evidence. Application of the ordinary rules of
evidence, including Evidence Code section 352, does not impair a defendant’s
right to present a defense (People v.
Boyette (2002) 29 Cal.4th 381, 414, 427-428), and we review the erroneous
exclusion of evidence to determine whether it was reasonably probable a result
more favorable to the defendant would have been reached in the absence of the
error (id. at p. 429;
836).
Based on the strong evidence
supporting defendant’s guilt, a result more favorable to defendant would not
have been reached had the evidence been admitted. The jury was already aware that defendant and
Emilia had a one-year lease on the Foxdale house and that defendant came to the
house to see his children and Emilia on occasion. The fact he also was paying rent would not
have changed the fact that he and Emilia were admittedly having marital
problems and that he had rented a new apartment. Moreover, it does not appear he actually did
pay the rent since he admitted that they were evicted. This evidence would not have changed the
strong evidence before the jury that defendant did not have an unconditional
right to enter the Foxdale house.
Additionally, there is no dispute
that Emilia suffered serious injuries to her face, and the only person present
during the incident was defendant.
Although at some point another male was in Emilia’s bedroom, there
simply was no evidence, other than defendant’s self-serving statements, that
this male remained in the room when Emilia was being hit. Emilia emerged from her room bloody, and
defendant chased after her. There was no
sign of this other male. Defendant
chased Emilia outside and then threw her to the ground. The evidence established that defendant
caused the injuries to Emilia. In fact,
defendant stated at the scene and again at the police station that he beat
Emilia up.
The evidence overwhelmingly
supported that defendant threw a rock through a window in order to gain access
to Emilia’s locked bedroom and then proceeded to beat her up. Any conceivable error occasioned by the
exclusion of defendant’s evidence was not prejudicial.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
RICHLI
J.
We
concur:
McKINSTER
Acting P. J.
KING
J.
many of the witnesses and the defendant share the same last names, we refer to
the witnesses by their first name for ease of reference and not out of disrespect
to the witnesses.
further statutory references are to the Penal Code unless otherwise indicated.
