P. v. Summerlin
Filed 11/24/09 P. v. Summerlin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. MARCUS SUMMERLIN, Defendant and Appellant. | E047248 (Super.Ct.Nos. FSB802501 & FSB048593) OPINION |
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Marcus Summerlin was charged with criminal threats (Pen. Code, 422, count 1),[1]assault with a semiautomatic firearm ( 245, subd. (b), count 2), burglary ( 459, count 3), and child abuse ( 273a, subd. (a), count 4). It was further alleged that, during the commission of counts 1, 3, and 4, defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a), which also caused the offenses to become serious and violent felonies under sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8). As to count 2, it was alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). In addition, it was alleged that defendant had served a prior prison term. ( 667.5.) A jury found defendant guilty as charged and found true the firearm enhancements as to each count. The People moved to dismiss the prior prison term allegation, and the court granted the motion. The court sentenced defendant to a total term of 23 years in state prison.
On appeal, defendant contends the trial court abused its discretion in excluding a proffered witnesss testimony under Evidence Code section 352. We disagree and affirm.
FACTUAL BACKGROUND
On or around June 16, 2008, Jane Doe was at home in her apartment with her eight-year-old daughter, A.P., her niece, J.B., and others. Defendant was A.P.s uncle (i.e., the brother of A.P.s father). Around 11:00 p.m. or midnight, defendant went to Does apartment complex with his girlfriend and the couples newborn baby. Doe was sitting on the trunk of her car when defendant approached her. Defendant was angry and confronted Doe about a rumor that he was not the father of his girlfriends child. Defendant started arguing with Doe, called her all kinds of names, and slapped her in the face with his hat. Defendant then said he was going to take his baby home and come back.
Defendant returned with a gun. Doe was sitting in her apartment folding laundry, when defendant opened the front door. He entered the apartment, cocked the gun, and put the gun to her head. A.P. started screaming. Doe slowly got up from her chair and scooted over toward the hall. Defendant walked down the hallway to see if anyone else was there. He then threatened to shoot this [mother f-----] up. When defendant put the gun back up to Does head, she grabbed it. She pushed it away from her face, and defendant fired the gun. A bullet hit the floor and ricocheted into the bathroom wall. J.B. was in her bedroom and heard defendant and Doe arguing. She heard the gunshot and came out of her bedroom. By the time she came out of her room, defendant was gone. J.B. observed that Doe was frightened and shaking. Doe caught her breath and then started to scream. J.B. told Doe to call the police. Doe called 911.
Officer Kevin Silbaugh responded to the call. He testified at trial that Doe was scared, shaking, and crying. He observed a bullet hole on the floor of Does bathroom, as well as bullet fragments.
The following day, Officer Silbaugh received information from defendants grandmother that defendant might be staying with his girlfriend. Officer Silbaugh drove to the area where defendants girlfriends apartment was located and spotted defendants car parked in a driveway. He knocked on the door of the corresponding apartment. Defendant stepped out, put his hands on top of his head, and was arrested without incident.
ANALYSIS
The Trial Court Properly Exercised Its Discretion in Excluding
J. Reeses Testimony
Defendant argues that the court erred in excluding the testimony of J. Reese regarding out-of-court statements made by Doe. He claims the proposed evidence was relevant for purposes of impeaching Does credibility. We disagree.
A. Background
After the final defense witness testified, defense counsel informed the court that he was still exploring the possibility of securing another witness. The following day, defense counsel informed the court that his office had contact with Reese. Reese indicated that Doe told her that she had seen defendants girlfriend rolling her eyes at A.P. Doe said that she was very protective of A.P. and that she would do anything she could to protect her. Defense counsel then stated: And as that is [sic] an offer of proof, we would ask the Court if the Court would allow us to present that evidence.
The prosecutor objected on grounds of late discovery, and that the proposed testimony was irrelevant to the events in question and would be unduly time consuming. The court excluded Reeses proposed testimony under Evidence Code section 352, finding that its [sic] probative value [was] questionable in balancing the prejudicial effect it [would] have on the jury.
B. The Evidence Was Irrelevant
The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.) The court here did not abuse its discretion. According to defense counsels offer of proof, Reese was going to testify that Doe saw defendants girlfriend roll her eyes at A.P. and said she would do anything to protect her child. As asserted by the prosecution, this proposed evidence was irrelevant to the events that occurred between defendant and Doe on or around June 16, 2008, and it would be unduly time consuming. We agree and conclude that the court properly excluded the proposed testimony.
Defendant does not dispute that Reeses proposed testimony was irrelevant to the facts of the case, but instead argues that the evidence was highly relevant impeachment evidence that would establish Does motive to lie at trial. He cites Does testimony on cross-examination, when she maintained that she never told anyone she was going to get [defendant]. From this statement, defendant claims that Doe gave the jurors the impression that she harbored no ill will or malice towards [him] or any person connected to [him]. As such, he argues that Reeses proposed testimony would provide the jury with [Does] prior inconsistent statement indicating that she harbored bad feelings towards [defendants girlfriend] as well as [defendant].
Defendants claim is nonsense. Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witnesss testimony. [Citations.] (People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Reeses proposed testimony did not disprove the truthfulness of Does testimony. Does cited testimony was simply a denial that she had told anyone she was going to get defendant. However, Reeses proposed testimony did not contain a statement by Doe that was inconsistent. Reese was simply going to testify that Doe said she saw defendants girlfriend roll her eyes at A.P., and said she would do anything to protect her child. Furthermore, any notion that Doe harbored bad feelings toward defendant to the point where she would lie at trial about what occurred was tenuous at best. In any event, Reeses proposed testimony would do nothing to establish a motive to lie. The proposed testimony merely indicated that Doe was protective of her child.
Even assuming the court erred in excluding Reeses proposed testimony, any error was harmless under any standard. The evidence of defendants guilt was strong. Doe and her niece testified as to the shooting incident and clearly identified defendant as the perpetrator. Furthermore, Does testimony was corroborated by the evidence of her distraught demeanor during police questioning at the scene, as well as the bullet hole and fragments in her bathroom. Moreover, when the police located defendant the next day, he essentially surrendered himself into custody without incident.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
MILLER
J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] All further statutory references will be to the Penal Code unless otherwise noted.
