P. v. Barron

Filed 11/19/09 P. v. Barron CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant of assault with a deadly weapon and found that he committed that offense for the benefit of a criminal street gang. (Pen. Code, 245, subd. (a)(1), 186.22, subd. (b)(1)(B).)[1] Defendant admitted that he had previously suffered a prior conviction that qualified as a serious felony and as a strike. ( 667, subd. (a), 667, subds. (b)-(i), 1170.12.) The court sentenced defendant to 16 years in state prison. On appeal, defendant argues that the trial courts ruling excluding defense-proffered evidence of police misconduct was error under Evidence Code section 352 and also infringed upon his federal constitutional rights. He also argues that the prosecutor committed misconduct during closing argument. We will affirm.

STATEMENT OF FACTS

Overview

On May 16, 2003, a fight broke out on Santa Clara Street in San Jose following a concert at the San Jose Arena that had attracted a number of gang members. Four law enforcement officers from the San Jose Police Departments gang unit witnessed the fight from their Ford Explorer. They testified that they saw what they believed to be a stabbing. They identified defendant as the stabber. Carlos Rivas was identified as the probable victim. Defendant and Rivas were members of rival graffiti-tagging crews affiliated with the Norteo street gang. One year earlier, defendant and two others had been charged and tried in connection with a shooting involving Rivas and his tagging crew; defendant had been acquitted, although the others had been convicted. The prosecutions theory of the current case posited lingering bad blood between defendant and Rivas as the motive for the stabbing. Rivas and others identified as having been involved in the post-concert fracas variously denied or admitted gang affiliations, bad blood between rival tagging crews, or knowledge of the circumstances surrounding the fight.

Defendant testified in his own behalf. He denied possession of a knife and claimed self defense. Self defense and simple assault instructions were given, but the jury convicted defendant of assault with a deadly weapon for the benefit of a street gang.

The Gang Evidence[2]

Officer Joe Campagna testified as an expert in the field of gangs and/or tagging crews. He defined graffiti vandalism as going out and tagging with . . . spray paint or pens in various areas of San Jose. A tagging crew is a group which commits the crime of graffiti vandalism together.

A regular tagger is a graffiti vandal who will commit vandalism on street poles and signs to get fame among his peers. Regular taggers will often tag alone. In contrast, tag bangers will actually go to somebodys neighborhood as a show of disrespect, . . . looking for problems or to show that . . . they dont back down to anybody. [T]heyll cross out peoples tags or monikers and put theirs up. [T]heyre more violent. Some of them carry weapons. [] They associate with [Norteo or Sureo] criminal street gangs, . . . whereas regular tagging crews dont associate with any other gangs. Tag bangers will wear the color red; they will have the hairstyles of a gang member; theyll hang out with other gang members, not only in their tagging crew but also . . . whichever gang theyre associating with. Tag bangers often go out in groups because theyre going out in . . . other peoples area to do damage. [T]hey know that most of the time theyre going to be confronted by somebody from the opposite or rival gang.

Members of the Norteo or Sureo gangs will also tag graffiti; it is one of the more prolific activities of gang members. They do it to show that this is their area, that other gangs arent . . . allowed to come into their area.

In 2000, there were well over 20 tagging crews in San Jose. Some crews joined together so that they could cover a wider area with graffiti vandalism. Some of crews had evolved into almost like gangs. TSU, DHT, AOT, and JSP[3] were some of the bigger tagging crews in San Jose and over the years they started engaging in assault with a deadly weapon and other violent crimes. Many assaults between rival tag banger crews are never reported to the police because gang members do not want to come to court, do not want to be labeled as snitches and do fear reprisal from other gang members for talking to the police or a judge.

In Officer Campagnas expert opinion, TSU is associated with the Norteo criminal street gang. Norteo criminal street gangs are associated with the color red, the number 14, and the letter N, which is the fourteenth letter of the alphabet and also stands for Northern Structure or Nuestra Familia. Campagna also opined that defendant is the leader of TSU and a Norteo gang member. Defendants original moniker was Lost but he later changed it to Chulo. Johnny Villafuerte is a cousin of defendants girlfriend, Christina Villafuerte, and is also a member of TSU. His moniker is Deaf. On February 11, 2002, Villafuerte told Campagna that defendant allowed him into the TSU tagging crew and gave him permission to start tagging the initials TSU.

It was also Officer Campagnas expert opinion that Efrain Maciel is a member of TSU and a Norteo gang member. Maciel has admitted that he associates with Norteo gang members but not that he is himself a Norteo gang member. Maciels moniker is Arson.

Campagna opined that JSP and AOT are tag bangers also associated with the Norteo criminal street gang. Carlos Rivas is a member of AOT-JSP; his moniker is Fraze. Jose Torres is also a member of JSP-AOT; his moniker is Hoser.

Officer Campagna opined that the primary activities of the TSU gang are felony vandalism and assault with a deadly weapon; that members of the TSU gang have individually and collectively engaged in a pattern of criminal gang activity, including the incident on May 16, 2003; and that the benefit that TSU received from the May 2003 incident is the reputation of being a strong and violent gang that does not back down.

Evidence was introduced about defendants prior arrests and convictions for graffiti vandalism and about his prior conviction for assault with a deadly weapon, in which defendant stabbed the victim.

Officer Campagna investigated a shooting incident that took place on February 25, 2002. Defendant and Efrain Maciel were charged with the shooting; Carlos Rivas was one of the victims. Maciel confessed to the shooting to Campagna. Maciel said that he was in the area of Sixth and Julian Streets to do graffiti vandalism. That neighborhood is the territory of the tagging crews JSP, AOT and DHT, which joined together as one gang because each crew had so few members. Maciel said he was with a juvenile member of TSU, and he implied that defendant was also with him, although he was prevented from naming defendant by the gangs code of conduct and his fear of being labeled a snitch.[4] Maciel recognized Fraze (Carlos Rivas) and Hoser (Jose Torres), both members of AOT-JSP.

George Vargas, who is not a member of AOT-JSP, was also present and identified members of TSU as the persons who shot at him.

On March 28, 2002, Campagna and another police officer interviewed Rivas at his parole agents office about the shooting. They wanted to know if Rivas could identify some individuals involved in a shooting incident. They did not threaten to violate Rivas parole or otherwise get him in trouble if he failed to cooperate.

Rivas told the police that on February 25, 2002, he and some friends were hanging out near Sixth and Julian Streets. Three men walked towards them yelling TSU. One of the men pulled out a small gun and started firing rounds at them. Rivas did not think it was a real gun, and he started yelling back at the men, who jumped into a waiting car and sped off. Rivas identified defendants photo from a photo line-up as the guy he chased down after the initial shots. That same day, police did a probation search of defendants home and located a red cap with a red T on it and a black cap with a T on it which indicated to Campagna that defendant was involved in gang activity. Defendant was arrested for the shooting that day.

Troy Benson of the district attorneys office prosecuted defendant, Maciel and a juvenile for assault with a deadly weapon in connection with the February 2002 shooting. The juvenile admitted guilt, but defendant and Maciel went to trial. Maciel was convicted, and defendant was acquitted. At trial, Rivas denied anything had happened. Although he had identified defendant to the police, he recanted his identification at trial.

In 2003, Benson also began prosecuting a second case involving defendant and Rivas in which Rivas was the victim of a stabbing. He received phone calls from Rivas in which Rivas said he did not want to testify because he was afraid of retaliation against him and his family by defendant or defendants gang. These phone calls were recorded and played for the jury.

The Assault on May 16, 2003

On May 16, 2003, a bomb concert was held at the San Jose Arena in downtown San Jose. A bomb concert is a large rap concert put on by the radio station Wild 94.6 that attracts large numbers of young adults, including a lot of gang members. The concert let out right around midnight. Detective Jose Rodriguez and his partner, Stan McFadden, along with a California Youth Authority (CYA) parole agent and a juvenile probation officer, were assigned to monitor the crowd on the Santa Clara corridor which runs from the Arena on Santa Clara Street to Highway 101. Typically, after such concerts, the crowd gets unruly and theres always a lot of small scuffles, a lot of gang fights.

On this night, Detective Rodriguez, dressed in civilian clothes, but with his police badge visible on his chest, was driving an unmarked Ford Explorer. McFadden was in the front passenger seat and the parole agent and probation officer were in the back seat. The others were also dressed in civilian clothes. At that time, all four officers were assigned to the gang investigations unit, and it was common for gang detectives from the San Jose Police Department to work with juvenile probation officers and CYA parole officers in trying to curb the gang problem.

Detective Rodriguez, heading westbound on Santa Clara Street, stopped at the light at the intersection with North Sixth Street. He saw anywhere from ten to 15[,] maybe even 20 individuals hanging out at the street corner, many of them dressed in red. They started to separate and square off against each other. Through the partially open window, he could hear them screaming and yelling. Some were raising up their arms, as if challenging people to fight. Pedestrians were walking by in both directions and the car traffic was stop-and-go, bumper to bumper.

Suddenly, rocks, bottles and sticks were flying. And then just chaos: everybody starting fights everywhere; everybody spilling into the . . . streets; people running down North Sixth Street; people just scattering and . . . fighting all over the place.

A couple of groups started fighting in the outside lane of Santa Clara Street near the curb closest to the Explorer. The Explorer was in the inside lane next to the center median, and there was a vehicle next to the Explorer in the outside lane, next to the curb.

Rodriguez testified that he saw defendant, who was standing next to the passenger side of the car beside the Explorer, towards the front of that car, take something out of his pocket. It had a shiny, like, blade and Rodriguez thought it was like a folding knife. Defendant started attacking the person in front of him. Defendant had the knife in his right hand and lunged towards the victim. He did a couple of slashes. And then he raised his arm, with a clenched fist, and kind of went over the top . . . of the victim . . . about five times. Detective Rodriguez demonstrated the action by us[ing] his arm in a slashing motion originally that went from right to left, and then an . . . over-the-shoulder downward stabbing motion. Defendant made contact with the victims upper chest, arms area, and the . . . back shoulder areas. The victim tried to defend himself with his fists, fighting back. Rodriguez believed defendant struck the victim from three to five times. Some of those strikes were slashes and some were stabs. The knife was five or six inches long with the blade extended and was less than a quarter-inch wide.

Other people jumped in between defendant and the victim and separated them. Defendant took a few steps back, still clenching the knife in his hand. Defendant walked south across Santa Clara Street. As defendant crossed the street, he walked in front of the Explorer, about 10 feet away, and Rodriguez was able to see defendants face clearly. Defendant walked slowly, still clenching the knife. He appeared to be looking around in all directions.

The officers stayed in their car because they were in civilian clothes and did not have their full gear. Detective McFadden called for backup immediately.

Detective Rodriguez turned the car around and drove south on Sixth Street, following defendant, who was walking in the middle of Sixth Street towards the Albertsons parking lot. As defendant entered the parking lot at Sixth Street, Detective Rodriguez drove in behind him. Two other individuals walked into the parking lot behind defendant. When it appeared that defendant was starting to walk back towards the scene of the attack, all four officers got out of the Explorer.

Detective Rodriguez was the first officer to confront the three individuals. Rodriguez identified himself as a San Jose police officer and told them to stop and get down on the ground as he displayed his badge with his left hand and pointed his gun at them with his right hand. Next, Detective McFadden came up with his gun drawn and pointed it at them, followed by parole agent Gloria Ramirez, who also pointed her gun at the men. Two of the men got down on the ground, but defendant made eye contact with Detective Rodriguez, turned around, and ran into the traffic on Santa Clara Street. At that moment, defendant was wearing dark gloves and still holding the knife. As defendant ran, a patrol car came from South Sixth Street to the officers location. Rodriguez yelled at the officer in the patrol car to stop defendant. With lights and siren activated, the patrol car followed defendant.

Rodriguez saw the uniformed officer get out of the patrol vehicle and approach defendant. Defendant turned around and started running back to the Albertsons parking lot. Rodriguez had started walking towards defendant and the uniformed officer, and cut off defendants escape through the parking lot. Rodriguez again identified himself as a police officer and told defendant to stop. Defendant looped back around and headed towards Santa Clara Street. When Rodriguez intercepted defendant, he believed defendant still had the knife; defendant had something clenched in his hands. Rodriguez assumed defendant was still armed, but all he could see was the clenched hands and the gloves; he could not actually see a blade of any sort.

Rodriguez gave chase. Defendant hurdled over some foot-high bushes and somehow stumbled and went headfirst into one of two round metal posts that supported an Albertsons sign. Defendant kind of bounced back and fell on the ground there in the dirt corner of that shopping center.

At that time, Detective Rodriguez handcuffed defendant. He did not have a knife on him. Defendant had a big gash on his forehead and was transported to the hospital. Defendant was bleeding from the head. Photos of defendants injuries were taken at the hospital. No knife was ever located. Detective Rodriguez had never met, contacted, or arrested defendant before this incident.

Officer McFadden also saw a fight occurring among a large group of red-clad Hispanic individuals to the right of the Explorer. Some of the people had hammers and sharp instruments such as knives. During the course of the fight he observed defendant wearing black gloves, with what appeared to be a sharp instrument in his hand, shuffling forward in a . . . stabbing manner. He saw defendant make contact with somebody, but he did not recall what that person looked like and did not get a good look at the victim. He described the thing in defendants hand as a stabbing instrument and a sharp instrument. Defendant made multiple movements and made contact with the victims upper torso and arm areas. McFadden stressed that he never saw defendant stab someone in the back area or left shoulder area.

Defendant then crossed the street in front of them, and they followed him in the Explorer. McFadden and Rodriguez stopped defendant and two others at gunpoint, although he did not recall who the two others were. McFadden detained the two subjects, believing them to be defendants associates; meanwhile, Rodriguez chased defendant. The probation and parole officers stayed with McFadden for crowd control and officer safety. He knew that subsequently defendant was arrested, and he eventually saw defendant in Rodriguezs custody.

Santa Clara County Probation Officer Carmen Hernandez-Murray supervises adult and juvenile probationers with gang affiliations. Her unit work[s] closely with San Jose PD, especially with the GIU, the gang investigation unit . . . on a regular basis. On May 16, 2003, she went with police officers Jose Rodriguez and Stan McFadden and parole agent Gloria Ramirez to gather intelligence on gang activity by her probationers after the bomb concert. She does not carry a gun. She was riding in the backseat of the Explorer behind McFadden in the front passenger seat. As they were cruising down Santa Clara Street near the intersection with Sixth Street, her attention was drawn to a huge group of males, some wearing red. At least 20 individuals, white and Hispanic, were involved in an altercation. She testified: I saw the defendant with . . . another unknown male. I dont know who it was. He [defendant] had something in his hand. I couldnt tell you if it was a knife or a screwdriver. . . . I didnt actually see it, but I saw the the stabbing motion to his back, maybe shoulder blade area. She felt it was a stabbing object just because of the motion with his hand. And I saw something. . . . There was something that caught my eye. Defendant was wearing black gloves. There were approximately four or five stabbing motions aimed at a specific person. She saw defendant lunge at the victim, and that was when she saw the [defendants] hand go out. She assumed he was stabbing him, the way it looked. She saw something shiny in the hand. She saw something going in that victims back and . . . shoulder area. However, she did not see any blood on his white T-shirt. She mainly saw his shoulder blade and back area and could not positively identify him. There was no doubt in her mind that defendant was the assailant. She recognized defendant from prior contacts.

Defendant passed in front of the car heading in the direction of the Albertsons store. She could not see a stabbing instrument. At that point, the officers drove into the Albertsons parking lot. Rodriguez and McFadden got out with their guns drawn. They said, Stop. San Jose Police. Defendant took off running. Hernandez- Murray lost sight of defendant when he ran away, and also lost track of Detective Rodriguez when her attention turned to everything else that was going on. As she recognized people involved in the fight, she and parole agent Ramirez began pulling over people. She did not see Detective Rodriguez take defendant into custody. Although she stated in her report that defendant was shortly apprehended by Officer Rodriguez, she learned that information from Detective McFadden. She hand-wrote her report at the hospital and gave it to Detective Rodriguez. She referred to him by his first name during her testimony because she has weekly meetings with the GIU, and they all go by first names.

Hernandez-Murray was one hundred per cent sure that she saw defendant stabbing someone. There is no reason why she would lie for Detective Rodriguez about that, and neither Rodriguez nor McFadden asked her to lie about it. She would not lie about something like that even if they asked her to do so, because if she were caught lying on a report or in testimony she would lose her job.

Gloria Ramirez is a parole agent with the California Department of Corrections and Rehabilitation, Juvenile Division. She supervises juveniles who have been released from the Youth Authority to the community on certain conditions, including the condition that they not associate with gang members, or wear gang clothing, or participate in gang offenses or parties. On May 16, 2003, she went to the bomb concert. There were a number of Norteos at the concert. After the concert, she rode in the gang units car. She was sitting in the back seat behind the driver, Rodriguez. There was a large crowd of people on the sidewalk to her right and she noticed that someone was being assaulted. She could not tell at this point whether the fight was between Norteos and Sureos. She did not hear people yelling gang slogans or see gang hand signals. At first it looked as if [s]omebody was being hit. But then she noticed that the assailants hand was kind of in a clenched, like he had something in there. And I could you could see something, but I didnt know exactly what it was. It looked like he was stabbing, making a stabbing motion. Ramirez could not give a description of what she saw because she could not even remember if it appeared to be metal. In her report, Ramirez indicated she saw an unknown object in defendants hand. The victim was hit maybe three or four times in the back and shoulder area. Ramirez identified defendant as the assailant. He wore black gloves, a black shirt and jeans. Later that night, at the hospital, she realized that she knew defendant from juvenile hall, five or six years earlier.

She did not see the victims face and could not identify a photograph of Rivas. She did not remember what the victim was wearing that night. She did not see any blood. She recalled seeing defendant run past the side of the car, but did not remember if she could see anything in his hands at that time.

Ramirez recalled that they made a U-turn into the Albertsons parking lot. Rodriguez got out of the car and said, Stop. San Jose Police. Defendant kept running and Rodriguez chased after him. She did not see Rodriguez apprehend defendant. She did not see defendant again until she saw him at the hospital. She, Hernandez-Murray, McFadden, and other officers at the scene were busy pulling people over. In her report, she wrote that Detective Rodriguez apprehended defendant after a short chase, but that was based on radio traffic that she heard.

At the time, Ramirez had been on ride-alongs with the gang unit possibly three times before that night, but not with Rodriguez and McFadden. She testified that it would not make it more difficult for her to interact with the officers in the gang unit if it were known that she had testified contrary to what gang detectives testified, if I was telling the truth. She would not lie for a San Jose police officer, and did not interact with Rodriguez or McFadden anymore. If she were to falsify a police report she would be fired, and she could be prosecuted for perjury and jailed. She also testified that she did not have any bad feelings about defendant based on her prior interactions with him at juvenile hall.

Fifteen or 20 minutes after apprehending defendant, Detective Rodriguez contacted Carlos Rivas, who was sitting in a police car. At that point, Rodriguez did not recognize Rivas, know him, or know of him from other gang detectives. He had a cut on his arm and a cut on his eyebrow. There was also blood dripping from a wound on the top of his head. The injuries to Rivas arm and head were photographed. Rodriguez did not believe he asked Rivas to lift his shirt up, and did not recall ever looking at the back of Rivass shirt to see if it was bloody.

Rodriguez informed Rivas that he knew Rivas was on parole and asked him about his involvement in the altercation that had taken place. Rivas said that he was a passenger in a car that was traveling slowly through traffic when an unknown man approached the car and punched him in the face, causing the gash on the top of his eye. Rivas got out of the car to defend himself, but everybody started running and scattering. As he was walking away, he was stopped by a police officer. Rivas said he could not identify his attackers; it had happened so fast that he wasnt sure.

At that time, Rodriguez did not immediately recognize Rivas as the person who had been stabbed by defendant. He did not know the history between defendant and Rivas, and he believed Rivass injuries were consistent with his explanation of how he got them. Nevertheless, Rodriguez suspected Rivas had been stabbed by defendant. Rivas did not complain of any injuries other than the wounds to his head and his arm. Rodriguez informed Rivas that several people had been stopped and he wanted Rivas to look at these individuals to see if he could identify anyone. Rivas was transported to the same hospital to which defendant had been transported. Rivas was not treated there. A field identification was conducted outside the hospital as defendant was in or about the ambulance prior to entering the emergency room. Rivas did not identify defendant as his attacker.

The Follow-up Investigation

Detective Rodriguez was not involved in the investigation of the 2002 shooting case in which defendant and Maciel were charged. Officer Campagna was not involved in the initial investigation of the assault on May 16, 2003. When he learned of it, he told Detective Rodriguez about the rivalry between TSU and AOT-JSP.

Rodriguez and Campagna interviewed Efrain Maciel on May 27, 2003. Maciel said that he and defendant were just in the wrong place at the wrong time on May 16th, 2003. As they were pulling out of a parking lot in the area, Maciel heard someone yell out AOT. He looked out the car window and saw Carlos Rivas. Someone threw a metal pipe against the back window of the car. Defendant yelled back F--- AOT. TSU. He jumped out of the car, and Maciel reluctantly jumped out also to back defendant up. A large fight broke out among defendant and the individuals who were present. At one point, defendant picked up a pipe and threw it at the others. Maciel said that he himself did not throw anything or hit anyone.

On June 5, 2003, Detective Rodriguez called Rivass parole agent and invited her to join him and three other officers in a parole search of Rivass house. Rodriguez, his partner, his supervisor, a patrol officer, and the parole agent, Ms. Perez, re-contacted Rivas at his home. Rodriguez interviewed Rivas for 30 minutes. He conducted the interview alone and did not tape record it. Nor did he ask Rivas to sign a statement. At that time, Rodriguez took a Polaroid photograph of Rivass back. The photograph depicts a scratch or something red in the center of Rivass back, in the general area where Rodriguez saw defendant stab someone. That was the only injury on Rivas back.

Detective Rodriguez first testified that Rivas identified defendant as the stabber on June 5. Rivas pointed out his injuries and said they were stab wounds.[5]

Rodriguez later explained (on cross-examination) that Rivas never flat out came out and said, Barron stabbed me. He said someone else besides Mr. Barron stabbed him. And then he gave a general description of a guy with a knife. [] . . . [] Without any names. And then he added all this other information about his background with Mr. Barron and why, even if he was the guy that stabbed him, he was not going to tell us; and that that was our job, to figure out who stabbed him; and that that was all that he was going to come and testify and do what he had to do; and we, the police, . . . had to work with what we had. [] . . . [] [H]e felt that if he identified Mr. Barron . . . [he] was going to go through the same process of being identified again as a snitch, putting his family in danger. So at that time he felt that his own safety and his familys safety outweighed him actually admitting to us or telling us that it was Mr. Barron that had [] . . . [] stabbed him. Rivas was willing to go as far as saying [defendant] was there, [defendant] charged at him, but then he said that someone else was the one that did the stabbing.

In further testimony, however, Rodriguez testified that Rivas contradicted himself. Sometimes he said it was not defendant, and other times he said he couldnt say it was defendant because he or his family will get hurt.

Rodriguez acknowledged that Rivas gave two different versions of what happened; in the first version, Rivas maintained that the fight involved Sureos. He said he was sitting in the car and got struck. He indicated that the injury on his back was an old injury, and that he injured his arm while at work. Rodriguez testified that Rivass change of story came about in the following way.

Rodriguez asked Rivas if he remembered the night of May 16, 2003, and Rivas said he did. Then Rodriguez and Rivas stepped outside of the residence to speak privately. Rodriguez was dressed in civilian clothing. Rodriguez informed Rivas for the first time that Rodriguez was aware of Rivass history with the tagging crews AOT and JSP; Rivas seemed surprised by that. Rivas at first denied that defendant and Maciel assaulted him. He stated that somebody approached him and attacked him with something that appeared to be some kind of knife. That person swung at him and cut him above the eye. He was also cut on his left elbow. When Rodriguez asked to see his back, Rivas admitted that the scar on his back was also from a blow received the night of the incident. He said he thought the same suspect slashed at him several times across his body. He described his assailant as a Hispanic male, approximately 17 to 20 years old, about 510 in height, medium built, medium to dark complexion. He was clean shaven and was . . . wearing a black sweatshirt and baseball cap. Rivas then described being stopped by a police officer as he was trying to walk away from the scene, and also talked about being taken to the hospital that night in an attempt to identify someone, but that he failed to identify the person.

Rodriguez asked Rivas if he did not want to identify defendant because he did not want to get involved. Rivas responded that he did not want to get involved, did not want to mention defendant in any interview because he knew, based on his prior history with defendant, that to do so would put his family in danger. Rivas pointed out that he had done what he had to do to identify defendant the last time, but that defendant had beat the case. He said that defendant knows I testified against him in court before, and thats why he is still trying to retaliate against me.

Prior to talking with Rivas, Rodriguez had obtained certain information from Rivass parole agent, Ms. Perez. Rodriguez confronted him about lying to Ms. Perez. Rivas responded that he had lied to her because he did not want to get in trouble with her or get his parole violated. Rivas then said he would tell Rodriguez what he knew, indicating to Rodriguez that his prior statements had been untruthful.

Rivas told Rodriguez that he used to be a member of AOT, but that he had gotten out of AOT after he went to prison. He admitted that he still hung out with members of AOT and JSP. On May 16, Rivas had been in the area of Sixth and Santa Clara Streets with some friends, including Jose Torres and at least nine other JSP members. Rivas saw George Vega, another member of JSP, and got out of his car to talk to him. As he stood on the street corner chatting, a member of his group yelled out AOT. Then someone from a moving car yelled back F--- AOT. The occupants of the car, Maciel and defendant, got out of the car and confronted them. A fight ensued in which Rivas was involved. He recognized defendant and Maciel from prior altercations with them and from court proceedings the previous year. Rivas said that defendant and Maciel were members of a rival tagging crew, TSU. He also recognized defendant from jail. Rivas told Rodriguez that the year before, while he and defendant were both housed in county jail, he learned that defendant had threatened him. Because his life was in danger, Rivas was removed from his cell and placed in protective custody.

On June 10, 2003, Campagna interviewed Luis Felix after arresting him on unrelated charges. Campagna did not promise to let Felix go if he cooperated. Felix is a JSP gang member who has JSP tattooed on his stomach and a very common Norteo tattoo on his face the number 1 by one eye, and four dots by the other. He admitted he was present during the May 16, 2003 incident. Campagna asked him Whats up with your boy Fraze getting stuck, meaning what happened when Carlos Rivas was stabbed. Felix replied, If it wasnt for me, he probably would be worse. He added that when defendant was stabbing Rivas, he (Felix) jumped in and hit defendant, causing the attack to end. Felix also said that the problems between JSP-AOT and TSU had been going on for years, and that he would not testify in a case against defendant. Campagna had been asked to subpoena Felix for trial, and Felix had been extremely uncooperative.

On August 11, 2004, Rodriguez and Campagna interviewed Rivas a final time

at Rivass parole officers office in an effort to persuade him to testify against defendant. At that time, Rivas made statements that indirectly tied Mr. Barron to . . . being [Rivass] assailant. Rivas said he did not want to testify against defendant because he did not want to be labeled a snitch. He told Campagna that when he and defendant had been in custody together, they had to be separated because defendant had threatened to harm him. Referring to the May 16, 2003 incident, Campagna told Rivas: Look what happened downtown last time Barron got out after he beat that case. He came after you. Rivas responded: And you saw what happened to him. They took Anthony away in a stretcher, not me. Campagna replied, Anthony still got you a couple times. Rivas responded, I got him too. Rivas indicated he would not admit he had made those statements to Campagna in court. He also said he knew that defendant would have his boys in court and would come after him if he said anything in court. When Detective Rodriguez offered to bring him to court and take him home, Rivas responded: You guys just do your job with the evidence you have, and Ill do what I have to do. However, Rivas immediately followed up that statement by saying he was no snitch and would not say that in court. He expressed fear that defendant and his friends would come after him and his family in retaliation. Rodriguez did not feel that either he or Officer Campagna threatened or put undue pressure on Rivas, nor did they have the ability to violate Rivass parole.

Carlos Rivas, Efrain Maciel, and Luis Torres were called as hostile witnesses at trial.

Rivas admitted that he became involved in a tagging crew called AOT or Always on Top when he was 16 or 17 years old and that his tagging moniker was Fraze. Rivas suffered three felony and two misdemeanor vandalisms convictions in 2002 and one misdemeanor vandalism conviction in 1999 for acts of graffiti. He denied that he was a Norteo gang member, and denied that his involvement with the crew was gang-related. His tagging crew did not associate with the color red. He just happened to be wearing a red shirt in court. He never heard of a tagging crew called TSU. He knew defendant from school and was friends with defendant when they were teenagers. They never stopped being friends; they never had previous altercations and defendant hasnt done anything for me to dislike him. He never knew that defendant was part of a crew called TSU or Tearing Shit Up. Rivas displayed his tattoos to the jury. He denied they were gang tattoos. He denied that his crew had fights with rival crews. He denied knowing Luis Felix.

On May 16, 2003, he was a passenger in a car driven by his friend Jose Torres that was stopped in traffic on Santa Clara Street. A group of Sureos began yelling at them and banging on the car. Through the open car window, one of the people in the group hit him in the eye with something heavy that was in his fist and cut him above the eye. He got out of the car to defend himself and the Sureos fled. Rivas denied that he was in a knife fight or was injured with a knife. The wound on his arm was a work-related scratch from a rose bush.

Rivas denied that he ever identified defendant as his attacker to Rodriguez or Campagna; denied telling them he was attacked with a knife; denied that he ever made the statements ascribed to him by Detective Rodriguez and Officer Campagna on June 5, 2003, and August 11, 2004; denied that he was afraid of defendant, or afraid of talking to the police, or fearful for his family. Finally, he denied that defendant and Maciel were involved in the 2002 shooting, and denied that he identified either defendant or Maciel to the police.

At the time of trial, Maciel was in Solano State Prison for possession of drugs. He admitted that he used to be a tagger; his tagger moniker was Arson. He knew of a tagger crew called TSU for Tearing Shit Up but he was not a part of it. He denied that he was a gang member. He grew up with defendant.

In February of 2002 he was carrying a .22 caliber Beretta because some people dont like tagging in their neighborhoods. He was tagging on Sixth and Julian Streets when 10 people came out with bats. He discharged his gun in the air. Defendant was not there. He would not tell on friends if they were there, because it is dangerous to be a snitch. Maciel pleaded guilty to two counts of assault with a deadly weapon as a result of that incident.

On May 15, 2003 he went to the concert with his girlfriend, Yvonne; defendant and defendants girlfriend, Christina; and his friend, Lorenzo. After the concert, Christina drove to the Albertsons on Sixth and Santa Clara Streets where she dropped Lorenzo off. Maciel was in the back seat and defendant was in the front passenger seat. Something hit the car, shattering the back window and barely missing him. He and defendant jumped out to assess the damage and were attacked by 10 to 15 people throwing bottles at them.

Maciel testified that defendant did not have a knife when he got out of the car, but acknowledged that he could not see defendant during the fight. He denied seeing Rivas, but acknowledged that when he was interviewed later, he identified a photo of Rivas and wrote Fraze from court on it. However, he denied that the fight was gang related, and denied telling police that the fight was preceded by shouts of AOT or TSU. He accused the police of lying in their reports about statements he allegedly made to them.

Luis Felix denied being a Norteo gang member, although he acknowledged that his facial tattoos were Norteo gang symbols. He did not remember being in the area of the concert on May 16 or seeing Rivas in a fight that night. He did not know defendant, or TSU, or Rivass moniker Fraze. He denied telling Campagna that defendant stabbed Rivas or that he stopped the attack.

The Defense Case

Christina Villafuerte is the mother of defendants son. She testified that she was driving the car in which defendant and Maciel were riding on May 16, 2003. After dropping Lorenzo off at the Albertsons parking lot, she continued to Santa Clara Street, where someone threw an object at her rear windshield and shattered it. She did not hear anyone yell AOT. Defendant did not yell back, F---- AOT. A group of 15 guys came towards her car, and defendant and Maciel got out to confront them. She then made a U-turn and drove away. She testified that defendant does not carry a knife and was not holding one when he got out of the car.

Veronica Prado was dating Lorenzo in May of 2003 and is best friends with Yvonne Sanchez, who was dating Maciel. She was waiting for a ride at the Albertsons lot after the concert when Villafuertes car cruised by and stopped. Lorenzo and Maciel got out of the car to talk to the girls, but Maciel got back in to continue cruising. She heard the glass shatter. She saw defendant being chased by a police officer who had his gun drawn and told defendant to freeze. She saw him run into the Albertsons sign post and fall down unconscious. He was then arrested. Prado did not see anything in defendants hands while he was running.

Defendant testified in his own behalf. On May 16, 2003, he was cruising on Santa Clara Street with Maciel, Lorenzo and Christina after the concert. They saw Veronica and Yvonne, and Lorenzo and Maciel got out of the car to talk to them. Maciel got back in the car and they continued cruising.

Christinas car was stuck in traffic on Santa Clara Street when suddenly something shattered the rear windshield. Defendant and Maciel got out of the car and were confronted by 15 guys who started fighting with them. He was punched by six or seven of the men and fought back with his fists. He was being hit over the head with bottles, so he put his head down and punched someone several times with his right hand while grabbing someone with his left. When he realized he was bleeding from the back of the head, he broke away from the fight and ran towards the parking lot. Defendant received seven stitches and has a scar on his head from being hit with bottles; he also received stitches for other injuries he received that night. Defendant denied that he had a weapon, or stabbed anyone, or assaulted anyone with a weapon that night.

Defendant noticed a car driving slowly into the Albertsons parking lot and saw that the driver was watching him. He did not know that the driver, Rodriguez, was a police officer, and never he heard him identify himself as a police officer. He thought Rodriguez was part of the group that had attacked him, and so he ran from him across Santa Clara Street. But when he saw a group of people pointing at him and coming towards him, he ran back towards Albertsons, where he again saw Rodriguez. When Rodriguez ran towards him, defendant became afraid and ran from him. He ran into the Albertsons sign and was arrested while he was on the ground, still dazed and semiconscious from hitting the pole. At that point, he told a uniformed officer that he had been attacked. He was taken to the hospital by ambulance a few minutes later. At the hospital, he told McFadden that he did not stab anyone.

Defendant denied that anyone yelled AOT or F--- AOT, TSU before the fight. He denied that he was the leader of TSU and testified that he had left TSU in 2001. He acknowledged that Rivas was in AOT but denied that AOT and TSU were rival gangs. He claimed that he and Rivas were friends. He denied that Rivas was one of the men who attacked him on May 16, 2003.

Defendant also denied any involvement in the 2002 shooting incident. He denied making or passing along threats to Rivas on account of his testimony in the 2002 or 2003 cases.

Defense investigator Shirley Bernal testified that she interviewed Rivas on May 13, 2004. He admitted to her that he had been stabbed on May 16, 2003, but said he did not know who the stabbed him. Rivas also told her that he feared defendant might retaliate against him for having identified him in connection with the 2002 shooting incident.

DISCUSSION

Exclusion of Defense Evidence of Police Misconduct

Defendant argues that the trial court abused its discretion under Evidence Code section 352 when it excluded evidence that Detective Rodriguez kicked defendant several times while he lay semiconscious on the ground. He also argues that the error had the additional effect of violating his federal due process right (Washington v. Texas (1967) 388 U.S. 14, 18-19; Chambers v. Mississippi (1973) 410 U.S. 284, 294), and his Sixth Amendment right (Davis v. Alaska (1974) 415 U.S. 308, 317 (Davis)) to present a defense theory, witnesses in his defense, and impeachment of a key prosecution witness.[6] As we explain below, we find that the trial court did abuse its discretion, and did impair defendants Sixth Amendment to impeach a key witness, but on the facts of this case we find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24.)

Factual Background

Prior to trial, defense counsel sought to introduce undisputed evidence that in the process of arresting defendant, Detective Rodriguez kicked [defendant] three times after he ran into the signpost and was on the ground.[7] According to the prosecutor, after defendant fell to the ground upon hitting a pole, he has his hands underneath him. When the officers make contact with him, theyre ordering him repeatedly to remove his hands from underneath him. He does not do that. And then he is kicked several times. [] The defendant . . . has no injuries . . . where he allegedly was kicked. Rodriguez supervisor, Sergeant Wilson, interviewed defendant that night about the kicking and recorded defendants statement.

The defense argued that the evidence of Detective Rodriguezs misconduct was relevant to show that Rodriguez had a motive to lie about seeing defendant stab another person with a knife. The defense theory was that Rodriguez claimed, untruthfully, that he saw defendant stab someone with a knife in order to be able to justify the kicking as reasonable in light of his stated belief that defendant was armed with a knife when he was arrested. As the prosecutor put it: The argument is absolutely that Officer Rodriguez is lying to cover his own butt for then kicking the defendant subsequent to this altercation. The defense argued that the physical evidence did not support a stabbing: no knife was found, the victim denied that he was stabbed, and he did not have any stab wounds to his back.

The court observed that there were three or four other witnesses who say that he was stabbed. Defense counsel responded: [I]f the jurors want to accept the testimony of the other three witnesses, fine. But I dont believe that the defense should be hampered in its attempt to discredit at least one of those officers. [] And that is the principal officer in this case. This officer contacted the victim subsequent to that night. This officer is . . . going to be testifying with regards to the gang allegations. Hes going to be sitting here throughout the trial. He is going to be the witness that I believe the jurors will be looking to . . . principally in terms of making their decision. If I can discredit him, then I think it calls into question the credibility of his partner officer, McFadden because they work together, theyre both undercover.

The prosecutor argued that the evidence was not relevant under Evidence Code section 352 because four independent law enforcement personnel . . . all say, independently, that they witnessed Mr. Barron stabbing somebody. [] Given that, it is not very likely that Officer Rodriguez is lying about what he saw in order to protect himself from the fact that he had to kick Mr. Barron.

The court ruled: I dont think its relevant if the testimony comes out the way Im hearing its going to come out. [But] if the witnesses dont testify that they all saw the defendant with a knife, then I will change my ruling, and I may consider it to be relevant what this witness says. [] . . . If people saw the defendant with a knife, then I dont think what happened afterwards, in terms of the officers response to it, is improper. And therefore, I think its really just trying to inflame the jury with the fact that the officer kicked the defendant. [] However, if these other witnesses, three other independent witnesses, dont say they saw defendant with a knife, then I would, of course, let this in, because I think it goes to the credibility of the one witness who indicates the defendant had a knife. [] . . . [] So I think the prejudice of this testimony coming in outweighs the probative, based on the offers of proof . . . that Ive heard about what the testimony is going to be.

After the four officers had testified about the altercation, the defense moved for reconsideration of the courts initial ruling. The court inquired of defense counsel how the kicking shows bias. Defense counsel explained that The motive is that he doesnt want Mr. Barron to be in a situation where he could potentially file a suit against him down the road, if Mr. Barron chose to do that. When the court inquired about the statute of limitations, counsel further explained that defendant did not file a citizen complaint immediately. Because he was on parole, he was whisked away to state prison on a violation. He served one year on the violation. When he returned from state prison, he attempted to file a complaint but was told the statute of limitations had run.

The court ruled: I dont think the probative value of this evidence is . . . there. I dont think it logically and reasonably . . . leads to the conclusion that the witness has a . . . motive to lie. I just dont think the dots connect up with the reason that Im given as the motivation here. [] The prejudicial evidence under 352 is not evidence that would naturally flow from highly relevant probative evidence. Its that prejudice which would cause a person to make a decision based on an extraneous factor. And I . . . think that this evidence that the defense is seeking to get in is that kind of evidence. So I am going to deny their request.

Relevant Legal Standards

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.

With respect to defendants state law claim, we review the trial courts evidentiary rulings for abuse of discretion. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citations.] A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.] [T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. [Citation.] Regarding constitutional limitations, we have held that not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)

With respect to defendants due process claim, we note that [t]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.) With respect to defendants Sixth Amendment claim, we observe that [t]he Supreme Court has indicated that [t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. [Citations.] The right to cross-examination is thus constitutionally protected. (Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, 1098 (Holley), quoting from Davis, supra, 415 U.S. at pp. 315-316.) [W]hen the credibility of a witness is in issue, the very starting point [of confrontation] is in exposing falsehood in bringing out the truth. (Smith v. Illinois (1968) 390 U.S. 129, 131.) Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. (Davis,at p. 316) A criminal defendant can prove a violation of his Sixth Amendment rights by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. (Holley, at p. 1098, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall), quoting Davis, at p. 318.)

It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. [Citation.] On the contrary, the right to cross-examination may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. [Citations.] [T]rial judges retain wide latitude to limit reasonably a criminal defendants right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant.  [Citations.] However, [r]estrictions on a criminal defendants rights to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve. (Holley, supra, 568 F.3d at pp. 1098-1099.) Moreover, [t]here is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced a significantly different impression of [the witnesss] credibility. . . . (People v. Belmontes (1988) 45 Cal.3d 744, 780, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Finally, we are mindful that trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight. (People v. Wright (1985) 39 Cal.3d 576, 584-585, quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)

With these principles in mind, we consider whether the trial court abused its discretion and/or violated defendants constitutional rights.

Defendant argues that the trial courts decision to exclude all evidence of Detective Rodriguezs use of force during defendants arrest was an abuse of discretion because it was based on the courts view that the corroboration of Rodriguezs account by the other law enforcement officers who witnessed the fight rendered the evidence at issue devoid of probative value. The Attorney General cites the same reasoning to support the trial courts exercise of discretion.

The Attorney General posits that the probative value of the use of force evidence depended on the following inferences: (1) Detective Rodriguez did not see defendant with a knife; (2) he kicked defendant out of spite or malice (or anger or frustration); (3) Detective Rodriguez needed a justification for kicking defendant in order to avoid departmental discipline or a civil suit; and (4) his invented justification for the kicks was that he had seen defendant with a knife and therefore believed that defendant, who was being uncooperative, was armed and dangerous. According to the Attorney General, this series of inferences is attenuated and illogical because Rodriguez was not the only officer who reported seeing [defendant] stab Rivas McFadden, Hernandez-Murray, and Ramirez also saw defendant make stabbing motions with an instrument.

We are not persuaded by the Attorney Generals arguments. In our view, the inferences defendant hoped to persuade the jury to draw were fairly straightforward: that Detective Rodriguez saw a fight, but he made up the part about seeing defendant wield a knife because he lost control and kicked defendant three times after chasing him up and down Santa Clara Street; he decided to justify his actions by claiming that it was necessary to use force to subdue an uncooperative suspect who was armed with a knife. Such inferences, while unfortunate, are not illogical.

The Attorney General also asserts that in order for Rodriguezs use of force to have any meaningful probative value, it would have to account for all of the officers testimony about seeing a shiny or knife-like instrument. He concludes that [t]he court did not base its ruling on a credibility finding that the officers were truthful, and by extension the other witnesses were not. Rather, the court based its ruling on the fact that the officers were consistent, regardless of whether they were correct or more persuasive than the other witnesses. Because of that consistency among the four officers, the inference of a motive to fabricate based on the kicking has some meaningful probative value only if it rationally accounts not just for Officer Rodriguezs testimony but also for the consistency in the other three officers reports of seeing a weapon. We disagree.

The strength, or weakness, of the inferences to be drawn did not depend entirely on the consistency between the police officers who testified. It also depended on the inconsistencies in their testimony. For example, not one other officer testified unequivocally that he or she saw defendant wield a knife, even though all were sitting in the