P. v. Travis
Filed 3/14/13 P. v. Travis CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM TRAVIS, Defendant and Appellant. | H036440 (Santa Clara County Super. Ct. No. CC946056) |
Following a
jury trial, William Travis (appellant) was found guilty of
appellant had personally used a handgun within the meaning of Penal Code
section 12022.53, subdivisions (b), (c), and (d) and had personally inflicted
great bodily injury on the victim Fred Williamson within the meaning of
sections 1203, subdivision (e)(3) and 12022.7, subdivision (a).
to 32 years in state prison.
In this
appeal appellant contends that his due
process rights were violated when the prosecution suppressed favorable
material evidence in violation of Brady
v. Maryland (1963) 373 U.S.
83 (Brady). Further, the trial court erred in excluding
evidence that the victim in this case, Fred Williamson, had raped a former
girlfriend. Appellant has filed a
petition for writ of habeas corpus in which he asks that this court order an
evidentiary hearing into what the prosecutor knew and when he knew it in
connection with his claim of a Brady
violation; alternatively, he asserts that his counsel was ineffective in
failing to cross examine the prosecutor and prosecutor's investigator in
connection with his post trial motion to set aside his conviction on
judgment. We have disposed of the habeas
petition by separate order filed this day.
(See Cal. Rules of Court, rule 8.387(b)(2)(B).)
Testimony Adduced at Trial
By 2009,
appellant and Fred Williamson had known each other for about four years. Appellant was Mr. Williamson's rap music
producer and Mr. Williamson considered him to be a friend. On May
30, 2009, appellant picked up Mr. Williamson at Mr. Williamson's
house in a car driven by Tiara Lewis. A
second passenger was in the car. This
passenger was later identified as Ryne Scott, but at trial was referred to as
Dreadlocks or Dreads because he sported a dreadlocks hairstyle. Ms. Lewis drove her car to a friend's house
where appellant's car was parked.
Appellant got into his car with Dreadlocks, but Mr. Williamson stayed in
Ms. Lewis's car. After stopping at a
liquor store both parties drove in separate cars to San
Jose to Aretha Dillard's house.
According
to Ms. Lewis, on the way to San Jose Mr. Williamson asked Ms. Lewis about her
relationship with Dreadlocks and appellant; Mr. Williamson made some derogatory
comments about them. Mr. Williamson told
Ms. Lewis that he was jealous of appellant because appellant always had money. Ms. Lewis thought that Mr. Williamson did not
like appellant, which made her nervous.
At one point, Mr. Williamson pulled out some money as if he was trying
to "entice" or impress her with the money.
Both
parties arrived at Ms. Dillard's house around 10:00
p.m. Ms. Dillard was making
dinner for her two daughters. Appellant
and Ms. Dillard had had a dating relationship for about three years and Ms.
Dillard had known Mr. Williamson for a couple of years. Ms. Dillard did not know either Dreadlocks or
Ms. Lewis.
At Ms.
Dillard's house Ms. Lewis became nervous and anxious to leave. She told Dreadlocks about the conversation
she had with Mr. Williamson on the journey to San Jose;
she asked Dreadlocks not to say anything to appellant. At one point, when Dreadlocks and appellant
stepped outside, Ms. Lewis suspected that Dreadlocks told appellant about her
conversation with Mr. Williamson. This
made Ms. Lewis grow increasingly uncomfortable.
According
to Ms. Dillard, at some point appellant announced that his keys were missing
and said that someone must have his keys.
Appellant said that he was going to check Mr. Williamson's pockets and
patted him. Mr. Williamson said that he
did not have appellant's keys.
Eventually, Dreadlocks took the keys from his pocket and tossed them
onto the couch.
Appellant
went outside with Mr. Williamson and asked him if he was talking about him
behind his back. Mr. Williamson denied
that he had been so doing. Mr.
Williamson went into the house while appellant, Dreadlocks, and Ms. Lewis
remained outside for a while. After they
came inside, Dreadlocks told Ms. Lewis to tell Mr. Williamson what she had been
saying to him and appellant while they were outside. Dreadlocks pressured her to "say
it." Ms. Lewis testified that she
was getting really nervous and uncomfortable.
Eventually, Ms. Lewis said that Mr. Williamson had called appellant a
"jay-cat."
name="_ftnref4" title="">[4] Ms. Lewis went upstairs to call a friend and
when she returned she "bolted out the door."
According
to Mr. Williamson, both appellant and Dreadlocks pulled out guns and accused
Mr. Williamson of calling appellant a jay cat.
Mr. Williamson became very scared; he testified he thought he was going
to die. Ms. Dillard entered the room,
but appellant told her to leave. At one
point, appellant put the gun down by his side.
Then he took a pillow from the couch and placed it in front of the
gun. Dreadlocks told appellant,
"You got to do him now because you done pulled a gun on him. You got to do him." When appellant said that he was going to
"give him a pass," Dreadlocks urged appellant to shoot Mr. Williamson
so that he would not come after appellant and shoot him. Appellant shot Mr. Williamson in the abdomen,
after which appellant and Dreadlocks ran from the house. Ms. Dillard called the police. Mr. Williamson denied having a gun in his
possession on the day of the shooting.
Ms. Dillard
was interviewed by Officer Peralez on May
30, 2009, shortly after the incident and again later. A recording of both the interviews was played
for the jury. In her first statement,
Ms. Dillard claimed she was in the bathroom when she heard a pop sound. After Officer Peralez spoke with Ms.
Dillard's daughter, who told him that she saw a gun, Officer Peralez
re-interviewed Ms. Dillard and confronted her with her daughter's statement
that she saw a gun. Ms. Dillard
confessed that she saw both appellant and the "other guy" pull out
guns and argue with Mr. Williamson. Ms.
Dillard testified that it was Dreadlocks that had the pillow in front of his
gun, but admitted that she told a detective that appellant put a pillow in
front of his gun. However, she testified
that she said that because she was scared.
Much of Ms. Dillard's trial testimony differed from the accounts she
gave officers after the incident in that she tried to place the blame on
Dreadlocks and that it was Mr. Williamson that had a gun not appellant.
Ms.
Dillard's daughter, who was eight years old at the time of trial, testified
that she saw Dreadlocks get angry with Mr. Williamson; she saw Dreadlocks point
a gun at him. Her mother told her to go
into the bathroom and lock the door.
Inside the bathroom, she heard a gunshot.
Defense Evidence
Appellant
did not testify. However, the defense
called Officer Billy Beason of the Hercules Police Department to testify about
prior incidents of domestic violence involving Mr. Williamson in order to
attack Mr. Williamson's credibility. The
court gave the jury a limiting instruction and informed them that alleged
domestic violence incidents involving Mr. Williamson and his former girlfriend
did not result in any conviction.
name="_ftnref6" title="">[6]
In addition
to Officer Beason, the defense called Ray Hernandez, an investigator with the
Santa Clara County District Attorney's Office.
He testified that he interviewed Ms. Lewis on March 17, 2010.
She told him that Mr. Williamson may have been making advances toward
her during the car ride on the day of the shooting. She said that Mr. Williamson pulled out a
large sum of money and seemed to be trying to impress her. Investigator Hernandez interviewed Mr.
Williamson on March 18, 2010;
Mr. Williamson acknowledged that he had owned a gun in the past.
Discussion
Alleged Brady
Violation
Background
Following
appellant's conviction, defense counsel filed a non-statutory motion to set
aside appellant's conviction based on a Brady
violation. Defense counsel argued that
according to Ray Hernandez's investigative reports received after the trial had
concluded, the true identity of the person known as Dreadlocks at trial became
known to the investigator on March 26,
2010, when Ms. Lewis positively identified that person's Department
of Motor Vehicles photograph. Defense
counsel alleged that neither the true identity of Dreadlocks nor his
whereabouts were revealed to the defense during trial; however, the prosecutor,
during argument, had mentioned the name Ryne Scott for the first time in
connection with telling the jury that they were not to be concerned with what
Dreadlocks/Ryne Scott was doing. Defense
counsel stated that less than a week after the trial ended, Mr. Scott was taken
into custody and gave a statement to Investigator Hernandez at the Alameda
County Jail, in which in essence, Mr. Scott said that there was a tussle
between appellant and Mr. Williamson over Mr. Williamson's gun and the gun went
off. Mr. Scott adamantly denied that he
told appellant to shoot Mr. Williamson.
Counsel argued that the prosecution was obligated under
the defense because Mr. Scott's "version of events would have been
extremely favorable to the defense."
The
prosecutor filed opposition to the motion in which he provided a lengthy
detailed chronology of events surrounding the discovery of Mr. Scott's true
name and whereabouts. The prosecutor
argued that learning Mr. Scott's name was not in and of itself
appellant already knew the whereabouts of Mr. Scott because they were friends
and it was appellant that brought him to Ms. Dillard's house on May 30, 2009. According to the prosecutor, an arrest
warrant issued for Mr. Scott on April
5, 2010; he was arrested at his home in Oakland
on April 13, 2010. Thereafter, on April 19, 2010, Investigator Hernandez took a statement
from Mr. Scott in which he said that appellant picked him up at his house on
the night of the shooting. Mr. Scott's
statement to the investigator was turned over to defense counsel within a few
days.
At the
hearing on appellant's motion, the prosecution and defense stipulated that
Investigator Hernandez showed Ms. Lewis a photograph of Ryne Scott on March 26, 2010; she identified
him. Accordingly, as of that date, the
prosecution knew Mr. Scott's full legal name, his date of birth, and his
precise address. While agreeing to the
stipulation, the prosecutor added that he personally did not know Mr. Scott's
name, date of birth and address until April
2, 2010, and even then he was under the impression that Mr. Scott's
first name was Ryan.
The court
took judicial notice that the prosecutor's opening statement took place on March 29, 2010, and closing
statements occurred on April 5, 2010. The jury returned its guilty verdict on April 7, 2010.
Defense
counsel pointed out to the court that in Mr. Scott's statement to Investigator
Hernandez, Mr. Scott said that Mr. Williamson had two weapons on him during the
incident; counsel argued that Mr. Scott's exhortation to appellant to shoot Mr.
Williamson was conspicuously absent from Mr. Scott's statement. According to counsel, Mr. Scott described the
shooting as "an accidental discharge and implied that there was a struggle
over a firearm at one point in time."
Counsel asserted that if the defense had been able to locate Mr. Scott,
and if Mr. Scott had testified, he would have given testimony similar to the
statement he gave Investigator Hernandez, which would have contradicted Mr.
Williamson's testimony about being unarmed.
The
prosecutor asserted that during appellant's trial law enforcement officers were
actively hunting for Mr. Scott, who was considered a codefendant. After Ms. Lewis identified Mr. Scott's
photograph, the prosecution had only Mr. Scott's name, date of birth, and
address. The prosecution did not have a
statement from Mr. Scott or any exculpatory evidence. The prosecutor speculated that it was
unlikely that Mr. Scott once he was found and charged would have taken the
witness stand to testify. The prosecutor
argued that Mr. Scott's statements to Investigator Hernandez were self-serving
because he said, " 'I never saw the shooting. I saw a gun that was within the reach of both
Mr. Travis and Mr. Williamson and I coincidentally or luckily turned my head
and heard a shot.' " As a final
point, the prosecutor argued that appellant, who had known Mr. Scott for a long
time and had picked Mr. Scott up at Mr. Scott's house on the night of the
shooting,
knew Mr. Scott's whereabouts.
Appellant
took the witness stand and testified that he had known Mr. Scott since 2005 or
2006. Appellant said that Mr. Scott was
not a close friend, rather he was somebody he knew and they would "hang
out" occasionally. Appellant denied
knowing exactly where Mr. Scott lived, but knew the general area. Appellant claimed to have picked up Mr. Scott
on "90th" in Oakland on
the day of the shooting.
name="_ftnref8" title="">[8] Appellant acknowledged that between the time
of the incident and him being arrested he had spoken to Mr. Scott. Appellant claimed to have Mr. Scott's
telephone number memorized. However, he
confirmed that telephone number was 510-809-7857.
Before
appellant testified, the court asked for clarification on the telephone number
for Mr. Scott that Ms. Lewis had provided to a defense investigator. According to the court, in his declaration
the defense investigator stated that he had received a telephone number of
510-302-7785 for Mr. Scott back in October 2009 and had attempted to contact
Mr. Scott on that number. The prosecutor
confirmed that the number was an accurate telephone number for Mr. Scott and
was used to ultimately identify Mr. Scott.
At this point in the proceedings, defense counsel did not dispute that
his investigator had the correct telephone number for Mr. Scott.
On
cross-examination, appellant disputed Mr. Scott's statement that he had been
picked up from his house by appellant on the day of the shooting. Appellant insisted that he picked up Mr.
Scott that day at 90th and McArthur.
Appellant admitted that he had Mr. Scott's telephone number; during the
12 days between the shooting and the time appellant was arrested, appellant
admitted that he spoke to Mr. Scott a few times.
Under
questioning from the court, appellant testified that he had Mr. Scott's
telephone number recorded in his cellular phone and that Mr. Scott's name would
come up when Mr. Scott called him. However, appellant disputed that the number he
had was the same number used by the prosecution to locate Mr. Scott.
The court
made a finding that it did not believe appellant did not know Mr. Scott's
whereabouts. Specifically, the court
stated, "I don't believe the defendant did not know the whereabouts of Mr.
Scott both based on his testimony, his body language in testifying, the close
relationship they appeared to have and the fact that Ryne Scott said that
without knowing it was going to harm the defendant because it seemed pretty
innocuous, that the defendant picked him up at his house."
At the
conclusion of the hearing, the court found not "one scintilla of evidence
to support a Brady violation in this case." The court went on to say that the prosecution
possessed nothing exculpatory as to appellant.
Furthermore, even if the defense could have obtained a statement from
Mr. Scott similar to the one Mr. Scott gave Investigator Hernandez, the court
would have found it inadmissible because it was "clearly
self-serving" and unreliable and thus not a declaration against interest.
The court
found it unlikely that Mr. Scott would have testified at appellant's trial and
given exculpatory testimony. Specifically, the court said, "These are
a lot of speculations, most of them based on premises that are not reasonable
and do not normally take place that he possibly would have given a statement
once he's charged, to the defense. There
would have been the same statement whenever it was taken, that he possibly
would have gotten on the stand. Very
rare, almost never. And he possibly
could have testified and gave the same self-serving statement."
In
addition, the court found that "the defendant in this case could have
obtained any evidence from Ryne Scott with any reasonable diligence. And that's because he was the only one that
knew where Ryne Scott lived. Everyone
else was on a fishing expedition basically."
Accordingly,
the court denied appellant's motion to set aside his conviction based on a
Appellant
argues that Mr. Scott's true name and location was potentially exculpatory
evidence that the prosecution was required to disclose to the defense. In other words, there was a
court erred in finding that there was not.
In
"that the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either
to guilt
irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p.
87.) The high court has extended the
prosecutor's duty to encompass the disclosure of material evidence, even if the
defense made no request concerning the evidence. (United States v. Agurs (1976) 427
U.S. 97, 107.) The duty encompasses
exculpatory evidence. (United States
v. Bagley (1985) 473 U.S. 667, 676 (Bagley).) Such evidence is material, however,
"only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
to undermine confidence in the outcome."
(Id. at p. 682.) Defendant
has the burden of showing materiality. (In
re Sassounian (1995) 9 Cal.4th 535, 545.)
To put it
another way, to merit relief on Brady
grounds, "the evidence a prosecutor failed to disclose
must have been both favorable to the defendant and material on either guilt or
punishment. Evidence would have been favorable
if it would have helped the defendant or hurt the prosecution, as by impeaching
one of its witnesses.
Evidence would have been material only if there is a reasonable
probability that, had it been disclosed to the defense,
the result would have been different."
(People v. Dickey (2005) 35 Cal.4th 884, 907 (Dickey).)
Thus,
"[t]here are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued." (Strickler v.
Greene (1999) 527 U.S. 263, 281–282.)
We review the elements of a Brady claim de novo. (People
v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Initially,
we point out, "The scope of a prosecutor's disclosure duty includes not
just exculpatory evidence in his possession but that possessed by
investigative agencies to which he has reasonable access." (People v. Robinson (1995) 31
Cal.App.4th 494, 499 (Robinson).) Thus, for purposes of this appeal the
prosecutor knew as of March 26, 2010,
Mr. Scott's true name and address.
Under the
circumstances presented here, we find the court did not err in determining a Brady
violation did not occur. First, this is
not a case where the prosecution suppressed the identity of an eyewitness as in
Robinson,
the prosecution had knowledge of an eyewitness who had been interviewed by an
arson investigator immediately after a suspect fire. The witness did not see the defendant but
implicated another individual. Defense
counsel learned of the witness only indirectly and belatedly during
cross-examination of another witness. The court in Robinson concluded
there was a distinct possibility the undisclosed witness would have testified
another individual, not the defendant, caused the fire. The withholding of this exculpatory evidence
by the district attorney was held to violate Brady and the judgment was
reversed. (Id. at pp. 502–503.)
Mr. Scott's
existence, if not his true name, was known to defense counsel early on as evidenced
by a defense investigator's report, dated November 23, 2009, of an interview of Ms. Lewis where she
stated that "Reezy" was with appellant at Aretha's house, and she
spoke with him the next day and found out what had transpired. Further, Ms. Lewis's statement to the defense
investigator included her telling him that Reezy told her that Mr. Williamson
had a gun with him the whole night and brought it out. She indicated she could not remember exactly
what Reezy said except that appellant got the gun away from Mr. Williamson and
shot him and there might have been a struggle over the gun and appellant
accidently shot Mr. Williamson. Thus,
defense counsel was fully aware that Reezy was a potential witness to the shooting
and could possibly have provided evidence favorable to his client.
More
importantly, the undisclosed evidence was Mr. Scott's true name and location,
information which by itself has no exculpatory value.
Although
the prosecution may not withhold favorable and material evidence from the
have the duty to conduct the defendant's investigation for him. (People v. Morrison (2004) 34 Cal.4th
698, 715 (Morrison).) If the material evidence is in a defendant's
possession or is available to a defendant through the exercise of due
diligence, then, at least as far as evidence is concerned, the defendant has
all that is necessary to ensure a fair trial, even if the prosecution is not
the source of the evidence. (Coe v. Bell
(6th Cir.1998) 161 F.3d 320, 344; U.S.
v. Pandozzi (1st Cir.1989) 878 F.2d 1526, 1529–1530.) Accordingly, evidence is not suppressed
unless the defendant was actually unaware of it and could not have discovered
it by the exercise of reasonable diligence.
(Morrison, supra, 34 Cal.4th at p. 715.) The Brady rule does not displace the
adversary system as the primary means by which truth is uncovered. (United
States v. Martinez–Mercado (5th
Cir.1989) 888 F.2d 1484, 1488.)
Accordingly, "when information is fully available to a defendant at
the time of trial and his only reason for not obtaining and presenting the
evidence to the Court is his lack of reasonable diligence, the defendant has no
Brady claim." (United
States v. Brown (5th Cir.1980) 628 F.2d 471, 473; see also United States
v. Stuart (8th Cir.1998) 150 F.3d 935, 937 [Evidence is not suppressed if
the defendant has access to the evidence prior to trial by the exercise of
reasonable diligence]; United States v. Slocum (11th Cir.1983) 708 F.2d
587, 599 [newly-discovered evidence does not warrant a new trial unless, inter
alia, the evidence is discovered following trial and the movant
demonstrates due diligence to discover the evidence prior to trial].)
In this
case appellant's Brady claim is
defeated by the fact that appellant had a close relationship with Mr. Scott,
and despite his protestations to the contrary, as the lower court found, knew
where Mr. Scott lived and how to locate him.
"There is no Brady violation 'where a defendant "knew
or should have known the essential facts permitting him to take advantage of
any exculpatory information," or where the evidence is available . . .
from another source,' because in such cases there is really nothing for the
government to disclose.
[Citations.]" (Coe v.
Bell, supra,
161 F.3d at p. 344.)
Accordingly,
we find no Brady violation in this
case.
Exclusion of Evidence
that Mr. Williamson Raped a Former Girlfriend
Background
After the
prosecution finished its case in chief, the court held an Evidence Code section
402 hearing (402 hearing) to determine the admissibility of evidence concerning
alleged prior incidents of misconduct by Mr. Williamson. Officer Billy Beason testified at the 402
hearing that on August 3, 2007,
he responded to a call about a rape and domestic violence incident. He contacted Jessica Powell who was visibly
shaken and "teary eyed." When
Officer Beason questioned Ms. Powell she told him that her former boyfriend
Fred Williamson had beaten her and raped her twice. She said that she called the police right
after Mr. Williamson left. Officer
Beason saw a fresh bruise on Ms. Powell's left shoulder and it appeared as if
she was in pain. A SART examination
was performed on Ms. Powell, but Mr. Williamson was never prosecuted.
The court
questioned Officer Beason regarding a conversation the officer had with Ms.
Bell, a friend of Ms. Powell. Ms. Bell
was with Ms. Powell while Officer Beason was there. Ms. Bell told him that she received a text
message saying " 'Fred hit me.' "
Ms. Bell told Officer Beason that when she telephoned Ms. Powell, Ms.
Powell was crying and said, "Fred hit me." Officer Beason had noted in his report that
Ms. Powell had told him that she had had consensual sex with Mr. Williamson two
months earlier. In addition, Ms. Powell
said that when Mr. Williamson wanted to have sex with her she told him that she
was "on [her] period." Four
Kotex pads were seized as evidence.
The court
listened to a recording of Ms. Powell's 911 telephone call.
the telephone call Ms. Powell said she was being raped. According to the court, when asked when it
happened, at first she said that it was a long time ago and then she said it
did not happen a long time ago.
Defense
counsel informed the court that Ms. Powell refused to testify; she was pregnant
and about to give birth. As a
consequence, defense counsel wanted to call Officer Beason to testify about
what Ms. Powell had told him for the purpose of impeaching Mr. Williamson's
credibility. The prosecutor argued that
neither Ms. Powell's statements to the 911 operator, nor to Officer Beason were
excited utterances and that the authenticity of the 911 tape could not be
proved. The prosecutor said that there
was no evidence that a rape occurred and suggested that Ms. Powell's refusal to
cooperate could mean that at the time she had lied about what happened because
she was angry with Mr. Williamson. The
prosecutor argued that evidence of Ms. Powell's statements should be excluded
under Evidence Code section 352.
The court
found that Ms. Powell's allegations of prior bad acts were "complicated by
a lot of factors." Ultimately, the
court ruled that Officer Beason could testify to the domestic violence
incident, but not the rape allegations; further, the court ruled inadmissible the
911 recording because the court was concerned with the trustworthiness of Ms.
Powell's allegation that she had been raped on that day.
The court
made a record of its considerations under Evidence Code section 352. Specifically, the court stated, "Just a
few more comments under 352, I find it far more prejudicial than probative to
allow anything regarding the rape under all the circumstances I talked about,
the alleged rape that occurred. There
wasn't enough credible evidence and certainly no probative value over the
prejudicial effect that it would have had.
[¶] Such an inflammatory charge
that was unsubstantiated. The battery
however was a close call, I thought there was enough evidence to show that
there was, even though obviously little concerned the alleged victim can't be
cross-examined regarding it and I find that more probative than
prejudicial. It's not going to be as
inflammatory but still be somewhat inflammatory and it has some probative value
as to credibility, as to Mr. Williamson's credibility."
Accordingly,
Officer Beason was allowed to testify as noted ante.
Appellant
contends that the court erred in allowing Officer Beason to testify about Ms.
Powell's allegations of domestic violence, but not about being raped. Appellant argues, "Powell was clear in
her statement to Officer Beason that she was both assaulted and raped within a
three hour period before she called 911."
In People
v. Wheeler (1992) 4 Cal.4th 284 ( Wheeler ), our Supreme Court held
that a person can be impeached in a criminal case by
turpitude, provided such evidence is not excluded under Evidence Code section
352. (Id. at pp. 295–297 & fn. 7.)
This is so because "[m]isconduct involving moral turpitude may
suggest a willingness to lie . . . ."
(Id. at p. 295.) "Of
course, the admissibility of any past misconduct for impeachment is limited at
the outset by the relevance requirement of moral turpitude. [Fn. omitted.] Beyond this, the latitude section 352 allows
for exclusion of impeachment evidence in individual cases is broad." (Id.
at p. 296.) Similarly, "[a] witness
may be impeached with any prior conduct involving moral
subject to the trial court's exercise of discretion under Evidence Code section
352." (People v. Clark (2011)
52 Cal.4th 856, 931.)
Certainly,
domestic violence is a crime of
1398, 1402), as is rape.
v. Mazza (1985) 175 Cal.App.3d 836, 844.)
Nevertheless,
Evidence Code section 352 provides that the trial court may, in its discretion,
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will necessitate undue consumption of time or
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.
name="_ftnref12" title="">[12]
Assuming,
without deciding, the evidence of the rape allegation was erroneously excluded,
we review errors in the application of the "ordinary rules of
evidence" under the standard set forth in People v. Watson (1956)
46 Cal.2d 818, 836. (People v. Marks (2003)
31 Cal.4th 197, 226–227.) Under the Watson
standard, if a trial court erroneously excludes evidence, a defendant must show
on appeal that it is reasonably probable he or she would have received a more
favorable result had that evidence been admitted. (Watson, at p. 836; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1125.)
Appellant
makes the bare assertion that the exclusion of the evidence of the rape
accusation was prejudicial since the case turned on Mr. Williamson's
credibility. We are not persuaded.
Even though
Mr. Williamson's credibility was an issue, the jury was already aware from the
court's instruction to the jury before Officer Beason testified that the
domestic violence allegation could be used in assessing Mr. Williamson's
credibility. We find no reasonable probability
that the outcome would have been different if Mr. Williamson had been impeached
with evidence of the rape allegation, which was cumulative to the other
impeachment evidence adduced by the defense.
Appellant has the burden of demonstrating that there would have been a
significantly different impression of the witness's credibility had the
proposed impeachment been permitted. (People
v. Williams (1997) 16 Cal.4th 153, 207-208.) Appellant has failed to carry that burden.
Disposition
The judgment
is affirmed.
_________________________________
ELIA,
Acting P. J.
WE CONCUR:
___________________________________
BAMATTRE-MANOUKIAN,
J.
___________________________________
MÃRQUEZ, J.
name="_ftn1" title="">[1] All unspecified statutory references
are to the Penal Code.
name="_ftn2" title="">[2] This court ordered the petition for
writ of habeas corpus be considered with the appeal.
