P. v. Smith
Filed 5/20/13 P.
v. Smith CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAMES CRISMON SMITH,
Defendant and
Appellant.
2d Crim.
No. B237750
(Super.
Ct. No. 2010014286)
(Ventura County)
James Crismon Smith
appeals a judgment following conviction of committing a lewd act with a child,
attempting to dissuade a witness, and misdemeanor disobeying a
findings of a prior serious felony and strike conviction. (Pen. Code, §§ 288, subd. (a), 136.1,
subd. (a)(2), 273.6, subd. (a), 667, subd. (a), 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).)
title="">[1] We affirm.
FACTS
AND PROCEDURAL HISTORY
Smith and Brandy A. were
married and had three minor children, including daughter B. The family lived with Smith's mother in Oxnard. In 2008, Smith and Brandy A. separated, and
in November 2009, they divorced.
During an argument in
2008, Smith assaulted Brandy A. Brandy
A. was then pregnant and suffered injuries from the assault. Smith was charged and convicted of spousal battery
and sentenced to prison in February 2009.
The sentencing court also issued a restraining order that stated that
Smith "[m]ust not attempt to or actually prevent or dissuade any victim or
witness from attending a hearing or testifying or making a report to any law
enforcement agency or person."
When Brandy A. explained
to B. that her father would be incarcerated for several years, B. looked
frightened and stated that "her daddy made her touch his
pee-pee." Several weeks later, B.
asked her mother to explain "the white stuff" regarding her father's
"pee-pee." Brandy A. informed
B.'s school counselor and later police officers regarding B.'s statements.
On February 12, 2009,
B. stated during a police interview that she touched her father's penis and
engaged in oral copulation. She also
stated that her father played "nasty" movies on the computer. The police interview was recorded and played
at trial.
B. testified that when
she was 10 or 11 years old, Smith touched her "in the wrong way" and
that she touched his penis. B. described
two incidents of molestation that occurred in her parents' bedroom and in the
bedroom she shared with her brother. B.
also stated that Smith showed her "nasty" movies on the television
and on the computer. She added that he
threatened to harm her if she informed anyone.
During Smith's
confinement for spousal battery, he
telephoned his mother and stated that he was "scared to death" that
the prosecutor would charge him with child molestation. Smith asked his mother "to dodge"
service of a subpoena and advise Brandy A. not to disclose her address when
applying for welfare benefits. He also
asked his mother to advise Brandy A. to obtain a post office box to conceal her
whereabouts.
In later telephone
calls, Smith's mother informed him that Brandy A. had moved to Arizona,
and then Needles, California. Smith asked his mother to ask Brandy A. to
videotape B. "saying [the molestation] did not happen." During another telephone call, Smith stated
that his prosecution could not occur if the victim does not "show
up."
mother were recorded by the prison and jail authorities and played at
trial.
Oxnard
police officers later seized letters that Smith wrote to his mother during his
confinement. A letter dated February 10,
2009, states that Brandy A. "needs to either move away or not let [B.]
testify." In a letter dated March
3, 2010, Smith informed his mother that his investigator "needs to
hear" that B. "lie[s] because she want[s] attention."
At trial, Smith
testified and denied molesting B. or using the home computer to view
pornography. Smith's mother also
testified that she never saw pornography in her home.
Evidence
Regarding B.'s Credibility
When Brandy A. and B.
lived in Needles, B. informed her girlfriend T. that T.'s brother C.
"tried to put his dick in her butt."
C. testified at trial that this was not true and that B. was a friend of
his younger sister T.
B. also informed a
defense investigator that C. was her former boyfriend and that she broke up
with him because he asked her to "suck his dingaling."
Conviction
and Sentencing
The jury convicted Smith
of committing a lewd act with a child, attempting to dissuade a witness, and
misdemeanor disobeying a domestic relations court order. (§§ 288, subd. (a), 136.1, subd. (a)(2),
273.6, subd. (a).) It could not agree
upon the charged count of oral copulation of a child under 10 years of age
(count 1). (§ 288.7, subd. (b).) In a separate proceeding, Smith admitted
suffering a prior serious felony strike conviction and serving two prior prison
terms. (§§ 667, subd. (a), 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
The trial court denied
Smith's motion to strike the prior serious felony strike conviction pursuant to
People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 504, and sentenced him to a prison term of 15
years. The court struck the prior prison
term allegations and did not impose confinement for the misdemeanor violation
of a domestic relations court order. It
also imposed a $500 restitution fine, a $500 parole revocation restitution fine
(stayed), a $120 court security assessment, and a $90 criminal conviction
assessment, ordered victim restitution, and awarded Smith 678 days of
presentence custody credit.
(§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code,
§ 70373.) The court dismissed count
1 at the request of the prosecutor.
Smith appeals and
contends that the trial court erred by 1) excluding evidence relating to B.'s
credibility, and 2) not instructing sua sponte regarding the statutory
presumption that he acted without malice when he dissuaded B. from
testifying. Smith asserts that the
errors violate his federal and California constitutional
rights.
DISCUSSION
I.
Smith argues that the
trial court abused its discretion by excluding certain evidence regarding B.'s
credibility. The evidence included B.
stating to T. that B.'s mother stated that T.'s father was a rapist, and that
B. stated to T. that girlfriend C. showed her photographs of C.'s mother and
the mother's boyfriend engaging in sexual acts.
Smith contends that the error is reversible and denies his
constitutional rights to due process of
law and to confront witnesses.
A trial court has broad
discretion pursuant to Evidence Code section 352 to 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, confusing the issues, or misleading the jury. (People
v. Riccardi (2012) 54 Cal.4th 758, 808.)
This discretion allows the trial court broad power to control the
presentation of proposed impeachment evidence "'"'"to prevent
criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues."'"'" (Id.
at pp. 808-809.) We review Evidence Code
section 352 rulings pursuant to the abuse of discretion standard. (Riccardi,
at p. 809.)
Moreover, exclusion of
marginal impeachment evidence pursuant to Evidence Code section 352 generally
does not contravene a defendant's constitutional rights to confrontation and
cross-examination. (People v. Pearson (2013) 56 Cal.4th 393, 455.) Although a defendant has a constitutional
right to present all relevant evidence of significant probative value in his
favor, there is no right to pursue an unlimited inquiry into collateral
matters. (People v. Homick (2012) 55 Cal.4th 816, 865.)
The trial court did not
abuse its discretion by excluding evidence of B.'s statements regarding T.'s
father or C.'s mother and the mother's boyfriend. The statements involved collateral matters --
sexual matters regarding T.'s father and C.'s mother -- and were made by B.
following the charged crimes. The court
permitted evidence, however, of B.'s statements to T. regarding T.'s brother's
attempts at sexual acts with B. During
summation, Smith argued that B. was not a credible witness in view of these
false allegations regarding T.'s brother ("She's a liar. Might as well call it what it is"). The court's evidentiary ruling was not a
"blanket exclusion" that stripped Smith of his defense. (People
v. Page (1991) 2 Cal.App.4th 161, 185.)
II.
Smith contends that the
trial court erred by not instructing sua sponte regarding the presumption
afforded by section 136.1, subdivision (a)(3), regarding a family member who
interferes with the administration of justice to protect the victim. He relies upon his isolated statement made to
his mother requesting that Brandy A. make a video recording exonerating him
because he did not "want to put [B.] through anything." Smith argues that the error is reversible and
denies him due process of law and the right to present a defense pursuant to
the federal and California constitutions.
Section 136.1,
subdivision (a)(1) prohibits "[k]nowingly and maliciously" preventing
or dissuading a witness or victim from testifying. Subdivision (a)(3) of the statute
provides: "For purposes of this
section, evidence that the defendant was a family member who interceded in an
effort to protect the witness or victim shall create a presumption that the act
was without malice."
"Malice" means "an intent to vex, annoy, harm, or injure
in any way another person, or to thwart or interfere in any manner with the
orderly administration of justice."
(§ 136, subd. (l).)
Smith did not request an
instruction regarding the presumption against malice and did not rely upon the
defense of protection of B. by dissuading her testimony. Such instruction would have been a
"pinpoint" instruction relating Smith's relationship to B. to the
element of malice in an attempt to raise a doubt whether the prosecutor carried
his burden of proof. Pinpoint
instructions relate particular facts to a legal issue in the case, such as
mistaken identification or alibi. (
348-349.) They should be given upon
request when evidence supports the theory, but are not required to be given sua
sponte. (Id. at p. 349.)
Here the trial court
properly instructed regarding the elements of the crime of dissuading a witness
and the prosecutor's burden of proof. (CALCRIM No. 2622.) It had no obligation to instruct sua sponte
regarding the pinpoint instruction of section 136.1, subdivision (a)(3).
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
David M.
Hirsch, Judge
Superior
Court County of Ventura
______________________________
Gilbert W. Lentz, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews, Linda C.
Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] On March 8, 2010, the
prosecutor dismissed the charges of child molestation because Brandy A. and B.
did not appear at the preliminary examination.
The charges were later refiled and a preliminary examination was held.
