P. v. Ross

Filed 8/5/08 P. v. Ross CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Already burdened with two prior felony convictions that counted as strikes, in January and February 2005, defendant Kelvin Deshawn Ross went on a one-man crime spree in Contra Costa County, resulting in an information charging him with 31 offenses. He was subsequently convicted by a jury of 23 of those offenses: eight counts of second degree robbery (Pen. Code,  212, 212.5[1]), seven of which involved use of a firearm ( 12022.5, 12022.53); two counts of attempted robbery ( 211, 664); nine counts of second degree burglary (  459-460); and four counts of being a past-convicted felon in possession of a firearm ( 12022.1, subd. (a)(1)). Thereafter, the trial court sustained six enhancement allegations: two serious felony convictions ( 667, subd. (a)(1)), two prior felony convictions for which defendant had served a prison term, ( 667.5, subd. (b)), and two prior felony convictions for kidnapping and robbery that qualified as strikes ( 667, subds. (b)-(i), 1170.12).

The trial court sentenced defendant to a determinate term of 32 years and four months; six consecutive indeterminate terms of 25 years to life; six concurrent terms of 25 years to life; and six concurrent 25 years to life terms that were stayed pursuant to section 654.

Defendant presents a single claim of error: The trial court abused its discretion by denying in part defendants motion for leave to present evidence that some other person had in fact committed a limited number of the offenses charged. We conclude that the trial courts ruling was not an abuse of discretion, and we affirm.

BACKGROUND

It must be emphasized at the outset that defendants sole contention applies to only a limited number of the charges against him. He was originally charged with 31 counts, 24 enhancements, and seven prior conviction allegations. Defendants motion applied to 11 of the charged counts based on four of the clustered offenses in the information.[2] But the jury acquitted defendant of all of the charges relating to one of the clusters (Counts twenty-one, twenty-two, and twenty-three). Thus, the claim of error applies to only three of the clustered offenses covered by defendants motion that went to the jury, and of which he was convicted, specifically, the clustered offenses relating to: (1) the January 16, 2005 robbery at an El Cerrito Baskin Robbins (Counts twenty-four and twenty-five) (2) the January 23, 2005 robbery at a Richmond Taco Bell (Counts six, seven and eight), and (3) the January 30, 2005 robbery at an El Cerrito Taco Bell (Counts eighteen, nineteen, and twenty).

In his pretrial brief, defendant advised the court that he would seek to admit evidence that these robberies may have been committed by Anthony Franklin . . . . In addition, . . . to admit evidence that all of the incidents he is charged with may have been committed by Thomas Coleman or another unknown suspect. The word all is to not to be taken in its literal sense, because defendant was talking about only four of the 11 separate incidents covered by the information. In his brief, defendant outlined an offer of proof supporting admissibility of third party culpability evidence.

Defendant specified the following categories of [e]vidence of third party culpability he sought to introduce: 1. Evidence of the photo lineup viewed by Ms. Mejia where she identified Mr. Franklin. [] (2) Evidence of the robbery of Mr. Ewing and his identification of Mr. Franklin and Mr. Ross. [] (3) Evidence of the pending charges against Mr. Franklin. [] (4) Evidence of the robbery of Mr. Jayasundara and his identification of Thomas Coleman.

The prosecutor filed written Opposition . . . to Defense Motion to Present Third Party Culpability Evidence in Jury Trial. Defendants motion was the subject of a two‑day evidentiary hearing conducted pursuant to Evidence Code section 402.[3] The testimony heard by the trial court may be summarized as follows:

Christopher Ewing testified that on the evening of January 27, 2005 he was robbed while working at a Subway sandwich shop in Richmond. A man entered the store and asked for a sandwich. Halfway through [making] the sandwich, I had a gun in my face. The man demanded that Ewing Give me the money! Ewing did so, whereupon the man ran out of the store.

Ewing further testified that within a week after the robbery, Richmond police showed him a photographic line-up. Ewing picked out a photograph of Michael Franklin as the man who robbed him. Sometime later, an investigator working for Franklin showed Ewing a picture of defendant, whom Ewing identified as the robber. At the hearing, Mr. Ewing stated I have my doubts about his prior identification of defendant, and he made only a tentative identification of defendant.

The second witness was Mayra Mejia, who testified that she was working at a Taco Bell in El Cerrito on January 30, 2005 when a man entered the restaurant, came up to the register, pointed the gun and told me to open the drawers and give him the money, which she did. Some time later, police showed her a photo line-up, and she picked out defendant as the man who robbed her. At the hearing, her identification from the photograph of defendant was not firm: It looks like him. I cant tell you if it is him or not, but its like his nose is wide as well, yeah. Asked on cross-examination, [A]s you sit here today, do you believe that to be the person? Ms. Mejia replied, I dont know. I dont remember.

Ms. Mejia further testified that about 18 months later, a defense investigator showed her a different photo line-up, and she picked out a picture of Franklin [b]ecause he look[ed] like the guy that robbed us. When confronted with defendant at the hearing and asked whether he was the robber, Ms. Mejia replied, He looks like the guy in the picture. [] . . . [] I cant say, but he does have similar features.

The final witness was the defense investigator, Kelly Whitney. She testified that on October 30, 2006, she showed Mejia a photo array. Mejia quickly within five seconds picked out Franklin, stating, Id say its this one.

Defendant sought to have admitted in evidence a copy of the information filed against Franklin. The prosecutor objected that the information lacked relevance because none of the charges against Franklin involved either the Ewing or Mejia robberies. When asked by the court What is the relevance?, defendants counsel responded: There are a series of similarities in the sense of geography and time of robberies occurring which overlap between Mr. Rosss matters, what hes charged with, and Mr. Franklin. So thats the relevance of the information. The trial court then decided that the information was being offered for a hearsay purpose (What you are asking me to do . . . is take the contents of the information for the truth of the matter), and refused to receive it in evidence.

After hearing brief argument on defendants motion, the court granted it in part and denied in part. The trial courts ruling deserves to be quoted in full for its thoroughness:

Let me focus first on Mr. Ewing. I think I understand what the law is and you making a record to what I have reviewed, I have read People v. Gutierrez, 28 Cal.4th [1083]. I believe it was cited by you, Mr. Feuerwerker [defendants counsel], and the seminal case which is People v. Hall. []  I have also reviewed People v. Ochoa, 19 Cal.4th 353, thats a 1993 case; also People v. Fry, 18 Cal.4th 894, a 1998 case; People v. Carter, 34 Cal.4th 214, thats a 2005 case; also People v. Harrisand I cant recall now if either one of you cited that case or notthats 37 Cal.4th 310; People v. Panah, P-A-N-A-H, 35 Cal.4th 395.

And going back to Mr. Ewing and the citing of People v. Panah, where the Court holds in relying on Hall and Sandoval, which is another case, S-A-N-D-O-V-A-Land its 4 Cal.4th, I dont have the page numberwhere they talk about the standard is evidence of your motive or opportunity to commit the crime and that the person, without more, will not suffice to raise a reasonable doubt about the defendants guilt, there must be direct or circumstantial evidence linking [a] third person to the actual perpetration of the crime.

Im having a great deal of difficulty with Mr. Ewing and the theory of third party culpability, because it is an uncharged offense and has not been charged against anybody, as I understand it. Perhaps at one time it was charged against Mr. Franklin, but that case is no longer charged and it is not charged in this case.

I do not see that actual or circumstantial evidence linking Mr. Franklin to the robbery of Mr. Ewing, the uncharged robbery [of] Mr. Ewing. And actually the evidence is not exculpatory, the evidence that was presented was inculpatory because he positively identified Mr. Ross as the individual who robbed him.

Assuming the Court is incorrect, that it does fall within the parameters of third party culpability, I would nevertheless exercise my [Evidence Code section] 352 discretion.

Given what Mr. Ross is charged with, to then have a witness come in and identify him as the robber in another similar case would be very inflammatory, it would be very misleading for the jury and also very confusing.

So, first, I do not find that the evidence is relevant. Assuming that it is relevant, the relevancy is outweighed by the inflammatory nature of the evidence, the prejudicial element, as well as it would be very misleading because this is an uncharged offense. And the identifications that were madelet me strike that last portion.

Okay. with respect to Ms. Mejia, let me look at the photographs again. [] With respect to Ms. Mejia, I feel the defense has met their burden with respect to direct and circumstantial evidence, linking Mr. Franklin to the charge in some degree. As I listened to her testify, it appeared to the Court she wasnt sure when she made the identification in the first place to police officers, she was not sure when she made the identification to the investigator, and she cant identify anybody in court.

Her identifications, from my perspective, are pretty weak all the way around. But there is enough there to let that one go the jury. And you can raise the issue of third party culpability with respect to that count on Ms. Mejia.[4]

Defendant tried that tactic at trial, but the jury nevertheless found him guilty of the charge that he robbed Ms. Mejia.

DISCUSSION

Principles Governing Admission Of

Third Party Culpability Evidence

It appears it was 1893 when the California Supreme Court first stated that It is always proper to show that some other person, and not the defendant committed the crime with which he is charged . . . . (People v. Mitchell (1893) 100 Cal. 328, 333-334.) But it was not until People v. Hall (1986) 41 Cal.3d 826 (Hall) that this concept assumed tangible form. It was Hall which established a defendants right to present evidence of another persons culpability if that evidence is itself capable of supporting a reasonable doubt as to the defendants guilt. However, the principle is subject to limitations:

To be admissible, the third party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third partys possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Hall, supra, 41 Cal.3d 826, 833.) [C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,]  350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,]  352). (Id. at p. 834.)

The Trial Court Did Not Abuse Its Discretion When It

Tacitly Rejected Defendants Written Offer Of Proof

Defendant argues that the trial court erred in rejecting the entire offer of proof he made in his trial brief. Defendant is unable to summon a single precedent where a trial court was reversed on appeal for not accepting a written offer of proof in preference to hearing testimony at a hearing conducted in accordance with Evidence Code section 402.[5] We are not surprised at this absence, for it tortures the imagination to conceive of such a situation.

A trial courts decision to hold a Evidence Code section 402 hearing is reviewed under the stringent abuse of discretion standard. (Peoplev. Williams (1997) 16 Cal.4th 153, 196‑197; People v. Galambos (2002) 104 Cal.App.4th 1147, 1156-1159; People v. Slocum (1975) 52 Cal.App.3d 867, 888.) Because Hall makes it clear that third party culpability evidence must satisfy certain criteria before it can be admitted, the use of a 402 hearing to decide the existence of those preliminary fact issues seems particularly appropriate. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1135 [The issue of third party culpability . . . became the subject of a full hearing pursuant to People v. Hall at which the defense presented the testimony of three witnesses].)

The offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited. The judge may properly reject a general or vague offer that does not indicate with precision the evidence to be presented and the witnesses who are to give it. (3 Witkin, Cal. Evidence (4th ed. 2000) Form of Offer,  402, pp. 491-492; accord, People v. Carlin (2007) 150 Cal.App.4th 322, 334.) Defendants written offer of proof came nowhere near satisfying these requirements.

Although Mr. Ewing and Ms. Mejia are mentioned, defendant did not state in his trial brief that either of these individuals would testify. Thomas Darnell Coleman is mentioned as having been identified as the robber of an El Cerrito Radio Shack on January 9, 2005. But no person or persons is specified as the source for the statement that the employee robbed, Mr. Yasajitn Jayasundara, did not identify defendant, but did Mr. Coleman, when shown photo arrays.

The offer of proof is also filled with a number of statements and conclusions which give no clue as to their source. For example, defendant stated that The Contra Costa District Attorneys Office has charged Michael Anthony Franklin by information with 24 felony counts arising out of 8 incidents of second degree robbery. In seven of the eight incidents, Mr. Franklin is alleged to have personally used a firearm. The robberies occurred between January 5, 2005, and February 2, 2005, in the City of Richmond. It might fairly be assumed that the source for these statements was the information filed against Franklin. But how was the trial court supposed to know who would substantiate what defendant went on to state: There are a number of similarities between the robberies Mr. Franklin is charged with and the robberies Mr. Ross is charged with. With a couple of exceptions, the robberies were all perpetrated by a single gunman and the targets were small commercial businesses with one to three employees on duty. In the majority of the robberies, the suspect entered the store business and began to make a purchase before committing the robbery. The robber is generally described as a medium-complected African-American Male, in his thirties and forties, medium height (5 [foot] 6 [inches] to 6 feet), thin to medium build, wearing dark clothing and some type of head weara description that could apply to both Mr. Franklin and Mr. Ross.

This is not the sort of information found in a prosecutors charging document. And the trial court could understandably wonder at such question-begging conclusions as With a couple of exceptions, In the majority of the robberies, and generally described. The offer of proof gave no hint whence defendants counsel drew these conclusions, or how he proposed to substantiate them if required.

In light of the foregoing, we conclude that defendant has failed to establish that the trial court abused its discretion when it implicitly rejected his written offer of proof in preference to holding an evidentiary hearing pursuant to Evidence Code section 402.

The Trial Court Did Not Abuse Its Discretion In

Refusing to Accept the Information In Evidence

Defendant next argues that the trial court erred in excluding the information against Franklin on the ground that it was hearsay. We do not agree. The trial court was completely correct that the information would have relevancy only if its contents were given their hearsay meaning, that is, for each of the counts, on such and such a date, at such and such a place, Michael Anthony Franklin committed such and such a criminal act.

Defendant attempts to renew his theory that the charging document qualified as a judicial admission by quoting Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066, fn. 4 to this effect: A judicial admission (by affirmative allegation in a pleading) is a conclusive concession of the truth of the matter admitted. (1 Witkin, Cal. Evidence (3d. ed. 1986) The Hearsay Rule,  644, p. 630.) The subsequent edition of the cited authority makes it clear that the principle applies only to Pleadings in Civil Cases. (1 Witkin, Cal. Evidence, supra, Hearsay,  97, p. 799.)

Defendants final effort is to try to qualify the information against Franklin under the official record exception to the hearsay rule in Evidence Code section 1280. We do not consider this new theory of admission because it was not raised in the trial court. (People v. Fauber (1992) 2 Cal.4th 792, 854.)

The Trial Court Did Not Abuse Its Discretion In Excluding

The Third Party Culpability Evidence

As Insufficiently Probative

Defendant moves on to contend that the trial court in effect misapplied Hall. He argues: The court rejected the third party culpability evidence because it found there was an insufficient connection between the evidence that Franklin, Coleman or others had been committing robberies and the specific robberies charged to appellant. The court ruled that appellant had to show proof that Franklin committed the specific crimes charged to appellant. This was too stringent a test for relevance. Defendant is wrong, for several reasons.

First off, we note that nothing about Coleman was introduced at the hearing. Granted, he was mentioned in defendants trial brief, but no witnesses or documents about him figured at the hearing. He is therefore not a proper subject for finding error in the trial courts ruling. Second, we confine our discussion regarding Franklin to actual evidence admitted at the hearing, and give no consideration to the information against Franklin which we have already concluded was properly excluded. Third, defendants contention must be evaluated while keeping in mind that the trial court did not decree a categorical ban on evidence that someone other than defendant might be guilty: as noted, the court did allow the defense to develop the idea when Ms. Mejia testified at trial. And the court did not misapply Hall, where the court specifically held that evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Hall, supra, 41 Cal.3d 826, 833, italics added.)

It is useful to compare the facts of Hall in order to gain an idea of what the court accepted as meeting the standard of direct or circumstantial evidence linking the third person to the actual perpetration of the crime sufficient to raise a reasonable doubt about a defendants guilt. (Hall, supra, 41 Cal.3d 826, 833.) The crime there was the murder of Israel Deasonhouse, who apparently had suffered fatal cardiac arrhythmia that may have been brought on by strangulation, as suggested by the victims hyoid bone, which was broken on its left side. The victim apparently had been eating cottage cheese at the time of his death, and had defecated in his pants. Prints of waffles-stomper shoes were found inside the victims house. Ten months after the murder, a man named Foust had come forward with information after his arrest for drunk driving, apparently hoping to mitigate punishment for that offense and for forgeries he had allegedly committed with Hall. Foust told police that Hall had told of killing an elderly man named Israel. According to Foust, Hall described the victim as eating cottage cheese and as losing bowel control when he was strangled. (Id. at pp. 829-831.)

The defense attempted to show that Deasonhouse was killed by someone other than defendant. After the prosecution rested, defendant made an offer of proof to show that Deasonhouse was more likely murdered . . . by Foust himself. Defendant intended to base his theory of Fousts culpability on the latters knowledge of intimate details of the murder not mentioned by defendant [in his statement to Foust]; on the fact that the victims hyoid bone was broken on the left side, although defendant is right-handed; and on the proposed testimony of Fousts estranged wife that he is left-handed, is violent when drunk, and has a history as a police informant. She would further testify that Foust had never spoken of a meeting with defendant . . . and was virtually tantamount to a pathological liar. Defendant would also attempt to prove that Fousts motive for bringing the murder to the attention of police was to avoid prosecution for forgery. (Hall, supra, 41 Cal.3d 826, 830.) Further, Fousts wife had testified that Foust wore waffle-stomper shoes around the time of the murder, to impeach testimony by Foust that he never wore such footwear. (Id. at p. 831.)

For the Supreme Court, this constituted proof linking Foust to the actual murder: waffle-stomper prints in the victims bedroom, the likely left-handedness of the killer, and knowledge of unique particulars of the murder all pointed to Foust as the possible killer. (Hall, supra, 41 Cal.3d 826, 833.) By contrast, defendants proof here was far, far weaker, at best based on two wobbly and conflicting identifications. There was no unequivocal direct or circumstantial evidence tying Franklinor Coleman, for that matterto any of the charged offenses. There was nothing in the nature of a statement or admission from either Franklin or Coleman connecting either to any of the offenses charged against defendant.

Nor did this case have the neatness of the Hall prosecution. According to defendants own moving papers, Coleman was the possible robber in only a single incident that occurred on January 9, 2005not incidentally, prior to any of the offenses charged against defendant. As for Franklin, the possible overlap of potential guilt is only slightly larger. As the prosecutor noted in her opposition, of the 14 charged robberies, defendant was seek[ing] to introduce evidence suggesting that Michael Franklin committed the first four robberies charged (1/16/05, two on 1/23/05, and 1/30/05). He is limited to those robberies since Mr. Franklin has been in custody since 2/2005. In other words, even if defendant succeeded in pointing the finger of suspicion towards both Coleman and Franklin, they would still account for only a small fraction of the charges filed against defendant. Unlike the setting in Hall, complete exoneration was never a possibility here.

Moreover, defendants Franklin-Coleman argument never progressed beyond the innuendo of suggesting the inference that defendant might have been arrested for the acts of Franklin and Coleman because they were committing armed robberies in the Richmond-El Cerrito area at the same general timeframe. This is the sort of evidence of mere . . . opportunity to commit the crime that Hall specifically noted will not suffice to raise a reasonable doubt about a defendants guilt. (Hall, supra, 41 Cal.3d 826, 833; see People v. Geier (2007) 41 Cal.4th 555, 581-582 [evidence of mere opportunity without further evidence linking the third party to the actual perpetration of the offense is inadmissible as third party culpability evidence]; People v.Avila (2006) 38 Cal.4th 491, 578.)

Given the totality of circumstances, we cannot agree with defendant that the trial court abused its discretion in excluding the third party culpability evidence as insufficiently probative.  [E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion  (People v. Cornwell (2005) 37 Cal.4th 50, 81, quoting People v. Babbitt (1988) 45 Cal.3d 660, 684.)

Defendant also challenges the trial courts ruling as a further abuse of the discretion granted by Evidence Code section 352. There is no need to address this argument at length. The preceding discussion demonstrates that the trial court would not have abused its discretion in denying defendants motion in its entirety on the ground that the proffered evidence did not meet the Hall standard of relevance. The trial court elected not to do so. Nevertheless, because the proffered evidence can be treated as lacking relevance, there could logically be no error in excluding it because its non‑existent relevance was outweighed by one or more of the factors identified in Evidence Code section 352.[6]

The Trial Courts Ruling Did Not Violate Defendants

Federal Constitutional Rights

Defendants final contention is that the trial courts ruling infringed his right guaranteed by the United States Constitution to present relevant exculpatory evidence to the jury . . . to raise a reasonable doubt as to his guilt. The contention is without merit.

South Carolina had an exceptionally stern view of third party culpability evidence, and since 1941 adhered to the view that  evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt . . . .    But before such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party . . . .   (State v. Gregory (S.C. 1941) 16 S.E.2d 532, 534-535.) Subsequently, the scope for admitting evidence was narrowed even further: [W]here there is strong evidence of an appellants guilt, especially where there is strong forensic evidence, the proffered evidence about a third partys alleged guilt does not raise a reasonable inference as to the defendants own innocence. (State v. Holmes (S.C. 2004) 605 S.E.2d 19, 24, citing State v. Gay (S.C. 2001) 541 S.E.2d 541.)

This rule was then successfully challenged before the United States Supreme Court in Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes). The Courts analysis was fairly brief and straight-forward.

 [S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. [Citations.] This latitude, however, has limits. Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.  [Citations.] This right is abridged by evidence rules that infring[e] upon a weighty interest of the accused and  arbitrary or disproportionate to the purposes they are designed to serve.  [Citation.] (Holmes, supra, 547 U.S. 319, 324.)

While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is out-weighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. [Citations.] Plainly referring to rules of this type, we have stated that the Constitution permits judges to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.  [Citations.] (Holmes, supra, 547 U.S. 319, 326-327.)

A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. [Citations.] . . . Such rules are widely accepted

. . . . (Holmes, supra, 547 U.S. 319, 327 [citing Hall, inter alia, in fn. *].)

South Carolinas rule went beyond this permissible point. Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecutions case: If the prosecutions case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. (Holmes, supra, 547 U.S. 319, 329.)

The point is that, by evaluating the strength of only one partys evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is arbitrary . . . . It follows that the rule applied in this case by the State Supreme Court violates a criminal defendants right to have  a meaningful opportunity to present a complete defense.  [Citation.] (Holmes, supra, 547 U.S. 319, 331.)

Clearly, Holmes addressed a completely different state rule, and does not aid defendant. Indeed, the Holmes court made a point of citing Hall as an example of a state approach that was consistent with constitutional requirementsan approach, it cannot be over emphasizedthat permitted defendant to introduce some of the third party culpability evidence he wanted. In decisions both before and after Holmes, our Supreme Court has as held that Hall satisfies constitutional demands. (People v. Lewisand Oliver (2006) 39 Cal.4th 970, 997; People v. Robinson (2005) 37 Cal.4th 592, 626-627 & fn. 17; see People v. Prince (2007) 40 Cal.4th 1179, 1243; People v. Yeoman (2003) 31 Cal.4th 93, 140-141; People v. Lewis (2001) 26 Cal.4th 334, 372-374; People v. Farmer (1989) 47 Cal.3d 888, 921; Hall, supra, 41 Cal.3d 826, 834-835.) It is not for us to disregard such a line of decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] By clustered offenses, we mean that the motion applied to four incidents, in three of which defendant was charged with counts of robbery, burglary, and illegal gun possession, and the remaining one producing charges of robbery and burglary.

[3] The hearing was held on November 15 and 16, 2006. The motion was originally called on November 8, but it quickly became apparent that defendant believed the written offer of proof he made in his trial brief was adequate to decide the issue. But the court thought otherwise, that it was necessary to hear testimony: You were left a message to have your witnesses here. You needed to do a 402 hearing. Im not accepting what is in your paper[s]. The People just indicated theyre not accepting it either. . . . You should have taken the hint . . . that you had to have witnesses. [T]here really is a difference between what is put in counsels moving papers and a court looking at the witness . . . .

After some discussionwhich threatened to become quite heatedabout whether the courts clerk had indeed left such a message for defendants counsel, the court told him point blank: Your papers are not sufficient, sir, because we need live testimony. So its your motion. You want me to consider the motion, sir, you need to put on witnesses. [] . . . [] . . . I indicated, sir, I wanted to do a 402 hearing. Its not your decision to make, sir, as to whether or not you put on witnesses. I have made the decision that I need to hear witnesses on this issue, sir. It was then agreed that the hearing would be held on the 15th.

[4] Immediately after the court concluded, defense counsel asked for the record, may I federalize my [objection?] []  THE COURT: Sure. []  MR. FEUERWERKER: I guess under the Fifth Amendment in Washington v. Texas, I would object to the Courts ruling precluding Mr. Ross being not a defendant.

[5] Defendant does cite People v. DePriest (2007) 42 Cal.4th 1, 43, as an instance where a written offer of proof was accepted as sufficient to warrant the defense to present third party culpability evidence. Nothing in DePriest supports the position defendant now advances, namely, that a trial court must accept a written offer of proof.

[6] The prosecutor made both of these points when argument against admission of the Ewing testimony: [W]e dont have Mr. Ewing providing any exculpatory evidence. What Mr. Ewing said . . . was that Mr. Ross is the person who robbed him. How that is transformed into third party culpability, Im not sure. Thats a prime example of my point, that under section 352 will consume time and will confuse the issues here . . . .

It is an ironic reversal of the usual trial and appellate postures that here it is counsel for the defense arguing for the admission of uncharged offenses, while it is the prosecutor who argues against letting the jury learn that the defendant is admitting to even more crimes than charged.