P. v. Brewster

Filed 3/9/07 P. v. Brewster CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John T. Doyle, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

A jury convicted appellant Shermaine Brewster of kidnapping to commit rape (count 1) (Pen. Code, 209, subd. (b)(1))[1]; attempted murder (count 2) ( 664/187, subd. (a)); criminal threats (count 3) ( 422); and assault with intent to commit rape, sodomy, oral copulation and a violation of sections 264.1, 288, and 289 (count 4) ( 220). With respect to count 3, the jury found true the allegations that the threatened crime, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and an immediate prospect of execution, and that the victim was reasonably in sustained fear for her safety and for the safety of her immediate family.

In the second portion of the bifurcated proceeding, the trial court found true the allegation that appellant had suffered two prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court also found true the allegations that appellant had suffered two prior serious felony convictions under section 667, subdivision (a) and two prior prison terms under section 667.5, subdivision (b).

The trial court sentenced appellant to a total term of 62 years to life. The sentence consisted of terms of 25 years to life in each of counts 1 and 2. The trial court added 10 years pursuant to section 667.5, subdivision (a) for appellants two prior serious felony convictions and two years for his two prison priors under section 667.5, subdivision (b). The trial court struck the prior convictions in counts 3 and 4. The trial court imposed the midterm of four years in count 4 and stayed the term pursuant to section 654. The trial court imposed a concurrent midterm of two years in count 3.

Appellant appeals on the grounds that: (1) the trial court violated appellants right to due process under the federal and California Constitutions by excluding relevant and admissible evidence of statements made by the alleged victim after her trial testimony, and (2) trial counsel was ineffective in specifying that one of appellants prior convictions was for manslaughter after the trial court had ordered the nature of the offense to be sanitized.[2]

FACTS

I. Prosecution Evidence

Helen H. (Helen) was a prostitute and had many convictions for prostitution. At the time of trial, she was in custody for prostitution. In the early morning hours of July 31, 2005, Helen was working at Figueroa Street and 104th Place in Los Angeles when appellant pulled up to her in a car. She had never seen appellant before. He asked her for a date, and they agreed upon a price. Helen got in appellants car, and he drove to a different location and parked. When Helen and appellant got in the backseat, Helen asked for the money. Appellant looked in his wallet, then dropped the wallet and began choking her from behind with an arm hold. A struggle ensued and appellant grabbed Helens cell phone when she tried to reach for it. He was still choking her with one hand. Helen managed to open the rear car door and get halfway out the door, but appellant got on top of her and began choking her again. Helen then passed out.

At some point Helen regained consciousness. She was lying on her stomach in the backseat. Her underwear and shoes were missing and her skirt was pulled up. Appellant was on top of her. She could feel his penis, but it was not hard. Appellant got up and went to open the trunk. Helen tried to reach for the car door and appellant jumped on her and tried to choke her again.

Helen told appellant she would cooperate, and he told her to get in the trunk. Appellant let Helen walk a little while he kept a choke-hold on her. Helen then said she was not getting in the trunk and began to fight. Appellant lifted Helen off her feet and she went limp. She did not remember being put in the trunk but she regained her senses when appellant was trying to close the trunk. She tried to fight him but passed out again. She remembered that the car moved.

On the night of the attack, Pamela Johnson (Johnson) heard mumbling and crying outside her home and looked out to see a man and a girl scuffling. She saw the man choking the girl, and Johnson called 911. She saw the man trying to put the girl in the trunk of a car. When the girl jumped back out and tried to run the man choked her out and threw her in the trunk. The man closed the trunk and drove off in the car.

Sergeant Anthony Otero responded to the call of a kidnap in progress. He saw a car proceeding without its headlights, followed it, and conducted a traffic stop. Appellant was the driver of the car. The car trunk was opened and Helen was found inside.

Helen remembered hearing a voice say Get down, and she began knocking on the trunk. When she was let out of the trunk she saw that there were a lot of police officers, and appellant was being taken to a police car. She was still afraid and noticed she had defecated. When police questioned her she was at first going to lie, but an officer told her that it did not matter what she did, appellant still was not in the right. She then told police exactly what happened. Police took Helen to a hospital where she was examined and photographed.

Forensic Nurse Pamela Walker (Walker) examined Helen. Helen displayed injuries consistent with strangulation, and she had defense wounds such as bruises, lacerations, and skin tears on her lower extremities. She had no injuries to her genital area. Helen told Walker she was not sure if appellant had penetrated her vagina or anus.

A tape recording of Helens interview with police was played for the jury.

II. Defense Evidence

Stephanie Wilson, a criminalist in the serology unit of the Los Angeles Police Departments crime laboratory, examined a condom found on the street where Helen was assaulted. Neither Helen nor appellant were contributors to the DNA obtained from the condom.

Appellant testified that he did not rape or attempt to rape Helen. He did not try to kill her, or threaten to kill her, or assault her. Appellant was Helens pimp and he put her in the trunk of his car to teach her a lesson about stealing. He said she was conscious when he put her in the trunk. He had known Helen for about a month and she had stolen his money that night by not giving him the money from her dates. They had an argument and she started swinging at him. On cross-examination he stated he also taught Helen a lesson by choking her, and he admitted assaulting her. Appellant acknowledged 1995 convictions for robbery and manslaughter.

DISCUSSION

I. Exclusion of Evidence

A. Proceedings Below

Early in herdirect examination, defense counsel asked appellant if something happened yesterday on the bus back to county jail. Appellant said that something had happened, and defense counsel asked, And that was with Miss Helen H.[] At this point the prosecutor objected and asked for a sidebar and offer of proof.

At sidebar, defense counsel explained, Yesterday on the way back to the county jail, Miss H.[] yelled on the bus that Mr. Brewster was a rapist and tried to--and tried to get someone to beat him up on the bus. The prosecutor objected on the ground of relevance. Defense counsel replied We know she wasnt raped.

The trial court responded, Okay. Your offer of proof is that Miss Helen H. yelled on the bus he is a rapist?  . . . and you said she tried to get somebody to beat him up. Thats a conclusion. Defense counsel responded, According to my client, he said someone tried to beat him up. But knowing that he is not a rapist, trying to incite people on the bus to attack him, and I think it goes to her credibility when she knew she was not raped. The nurse has come in and said she was not raped, and, so, I think it goes to her credibility and her reason for wanting him locked up.

The prosecutor argued that the incident on the bus was completely irrelevant and that, furthermore, Helen did not know whether or not she was raped during the time she was unconscious. Defense counsel replied, It goes to her credibility and credibility is always in issue, and its always relevant. The trial court stated, Im hard-pressed to find some probative value to it. Ill exclude it.

B. Argument

Appellant contends he was deprived of his Sixth and Fourteenth Amendment and state due-process rights to defend against the charges, to present a complete defense, and to confront and cross-examine witnesses when the court excluded the evidence described in the preceding paragraph. According to appellant, the evidence was relevant and admissible because (1) it would have significantly impeached Helens credibility as a prior inconsistent statement regarding a material issue, and (2) it would have been probative of Helens character trait for mendacity, of her animus to appellant, and of her intent to retaliate against him by making false accusations consisting of the charges in counts 1 through 4. The excluded evidence also would have bolstered appellants claims that he was Helens pimp and had not raped her, intended to rape or kill her, or threatened to kill her.

C. Relevant Authority

It is well settled that the trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. [Citations.] (People v. Wade (1988) 44 Cal.3d 975, 992.)

Evidence Code section 1103, subdivision (a) provides: In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . . . (Evid. Code,  780.) However, [t]he 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, of confusing the issues, or of misleading the jury. (Evid. Code, 352.)

D. Evidence Properly Excluded

We believe the trial court properly excluded the evidence in question. Appellant clearly has a due process right to present evidence material to his defense so long as the evidence is of significant probative value. (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) However, as the Reeder court emphasized, a defendant has no constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352. (Ibid.) [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. (People v. Wheeler (1992) 4 Cal.4th 284, 296.)

In the first instance, Helens alleged statement that appellant had raped her was not diametrically inconsistent with her trial testimony. At trial she stated that she did not know if appellant had penetrated her. The examining nurse corroborated this statement, since her report showed that Helen gave the nurse the same information. The nurse did not testify that Helen was not raped--she merely stated that during the genitalia examination, no injuries were noted. If Helens claimed lack of knowledge were somehow deemed to be a deliberate evasion, then inconsistency would be implied. But there is no indication of evasiveness on this point. (See People v. Green (1971) 3 Cal.3d 981, 988-989, disapproved on another point in People v. Chavez (1980) 26 Cal.3d 334, 357.) Helen may have arrived at the conclusion that appellant had raped her, but ascertaining whether she had or had not in order to impeach her credibility would consume an undue amount of time, would confuse the issues, and would perhaps work to appellants detriment.

We also conclude the evidence was not probative of Helens character trait for mendacity, of her animus to appellant, and of her intent to retaliate against him by making false accusations consisting of the charges as appellant asserts. Any probative value of the statement regarding Helens truthfulness was minimal, since her credibility was sufficiently placed at issue by other means. Helen already had been impeached with her prior conviction, her history of prostitution, and her admission that she contemplated lying to police about the events that night. Evidence of the alleged angry outburst would not have significantly added to this litany. Indeed, it may have even bolstered her testimony, since her outburst on the bus did not constitute a denial that any of the charged offenses occurred. Animus toward appellant is akin to bias, and this too was evident from Helens status as a victim. Finally, given the evidence in this case, as discussed post, any intent to retaliate against appellant was not relevant to whether the crimes charged occurred. Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) Moreover, there was ample evidence that Helen had supposedly cheated appellant out of his portion of her earnings and that she started swinging at him when he demanded his money. The bus incident was therefore not only collateral but also cumulative with respect to the issue of Helens feelings toward appellant. The trial court has discretion to exclude impeachment evidence, including a prior inconsistent statement, if it is collateral, cumulative, confusing, or misleading. (People v. Douglas (1990) 50 Cal.3d 468, 509.)

Appellant also contends that exclusion of the evidence violated his due process right to a fair trial and to present a defense. In order to preserve a federal constitutional claim for review on appeal, however, the defendant must have made the same claim before the trial court. (See People v. Crittenden (1994) 9 Cal.4th 83, 135, fn. 10.) Appellant made no objection based upon either due process or the federal constitutional right to present a defense and has therefore waived the issue. Even if the claim had been made in the trial court, however, we would find no federal constitutional error in view of our determination that the evidence was properly excluded. (Ibid.)

Moreover, the proffered evidence of the bus incident would not have supported appellants self-defense claims, since there was nothing in the evidence that tended to bolster his claims that his actions were justified because Helen started to swing at him when he demanded her money and he felt the need to protect himself.[3] The evidence that Helen called appellant a rapist would not have shown a propensity for violence, as was required given that the charges involved assaultive conduct by appellant. (Evid. Code,  1103.) There are different traits of character, and the evidence must relate to the particular trait involved [.] (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, 38, p. 371, original italics.)

Finally, even if we were to conclude that the evidence should have been admitted we would find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Contrary to appellants argument the evidence at trial was not in equipoise. Helens account of the incident was corroborated by an independent bystander. Johnson saw appellant and Helen struggling, and she saw appellant choking Helen. She then saw appellant dragging Helens limp body to the trunk of the car. Appellant tried to put Helen in the trunk but she woke up and began screaming. She jumped out of the trunk and appellant grabbed her and began choking her again. Johnson said that it looked like he choked her out, and then he was able to throw her in the trunk this time and close the trunk. Johnson testified that the area where appellant was parked is a place where she had seen a lot of prostitution occur. This corroborated Helens account that appellant was a date of hers rather than her pimp. The jury requested readback of Johnsons testimony, indicating that they gave it considerable weight.

In addition, Walker testified that Helen had numerous defensive injuries on her legs. She also had injuries consistent with strangulation, such as hoarseness of the voice, petechia in the eyes, an abrasion to the left side of the chin, bruising behind the ears and bruising and edema around the neck. The jury was shown photographs of Helens injuries. Walker stated that appellant had no injuries. Walker testified that Helen had lost control of her elimination functions due to strangulation, which resulted in asphyxia. She explained that asphyxia is a lack of circulation to the brain that causes the brain to lose its blood supply and results in a person losing all control of the muscles. Walker stated that it takes at least 11 pounds of pressure to the carotid artery for at least 10 seconds to cause someone to lose consciousness.

Appellant himself damaged his case by first denying he committed any of the crimes, including assault, and then admitting that he assaulted Helen and that he choked her. Appellant apparently believed that telling the jury he was pimping and teaching her a lesson justified his actions of choking Helen. He acknowledged that Helen did not hurt him in any way that night. We conclude that the trial court properly excluded the evidence and that any error in so doing was, in any event, harmless under any standard.

II. Ineffective Assistance of Counsel

A. Argument

Appellant contends that his counsel committed reversible error that violated his Sixth Amendment right to the effective assistance of counsel by asking him on the stand whether he had been previously convicted of manslaughter. Before trial, counsel obtained a court order sanitizing the 1995 manslaughter conviction by arguing that it was too similar to the attempted murder charge and would be extremely prejudicial.

B. Relevant Authority

In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsels performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Trial counsels performance may be deemed deficient only if trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. (People v. Pope (1979) 23 Cal.3d 412, 424.) Furthermore, a defendant must affirmatively show that, in the absence of counsels failings, it is reasonably probable a determination more favorable to him would have occurred. (Strickland v. Washington (1984) 466 U.S. 668, 694-696; People v. Ledesma, supra, 43 Cal.3d 171, 217-218.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) An appellate court need not address both prongs of the test before rejecting a claim of ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 697.)

C. Counsel Not Ineffective

We conclude that defense counsels mention of the manslaughter conviction did not result in prejudice to appellant, and therefore counsel was not ineffective. Although the charged crime of attempted murder is similar to that of manslaughter and the trial court granted trial counsels request to sanitize the conviction, convictions for even identical offenses are not automatically excluded and are therefore not necessarily fatally prejudicial to a defendants case. (See generally People v. Green (1995) 34 Cal.App.4th 165, 183; People v. Castro (1986) 186 Cal.App.3d 1211, 1216; People v. Foreman (1985) 174 Cal.App.3d 175, 182.) There are numerous instances in which impeachment has been permitted with prior convictions identical to the charged offense. (See, e.g., People v. Green, supra, at pp. 173, 183 [defendant impeached with multiple identical prior convictions]; People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 [no error in failing to sanitize prior murder conviction in murder case]; People v. Muldrow (1988) 202 Cal.App.3d 636, 647 [defendant impeached with six prior convictions of which three were identical to a charged offense]; People v. Castro, supra, 186 Cal.App.3d at pp. 1214, 1217 [five identical prior convictions not inadmissible as a matter of law].)

It is true that the prosecutor took advantage of counsels mentioning that the prior conviction was for manslaughter. During argument the prosecutor stated, And, this point, I want to make sure that all of you heard because it happened very quickly at the beginning of the defendants testimony. He has a prior conviction for manslaughter, meaning he has killed before. Defense counsel objected, stating, The D.A. knows that this is improper and that his prior goes to his credibility only. The trial court promptly admonished the jury by stating, Shes correct. You are to assess the existence of that prior conviction on the issue of his believability only. The prosecutor continued by saying, so using that as the Judge has explained to you, you know that he has that prior conviction, and what he doesnt have a prior conviction for is for pimping. You didnt hear any evidence about that. What he has a prior history for is for violence. You remember that. Defense counsel objected on the basis of improper argument and the court sustained the objection and struck that portion of the prosecutors argument.

The court immediately admonished the jury by stating, The character of the conviction in terms of violence is not for you to assess whether or not he has a disposition or propensity to commit violent crimes, just the issue of his believability only. Also, the trial court instructed the jury with CALJIC No. 2.23 that [t]he fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of that witness. We presume the jury followed the courts instructions and disregarded the stricken comments. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)

In this case, the evidence against appellant was very strong, as discussed in the previous section of this opinion. We have also noted that appellants own testimony adversely affected his credibility. Under the circumstances of this case, therefore, appellant suffered no prejudice in that it is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (Cal. Const., art. VI, 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, P. J.

BOREN

We concur:

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Appellant has also filed a petition for writ of habeas corpus in case No. B193261 in which he raises the issue of ineffective assistance of counsel. This petition will be considered concurrently with, but separately from, the instant appeal. A separate order will be filed in that matter.

[3] The trial court instructed the jury with several self-defense instructions.