Filed 3/27/17 P. v. Drake CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

GASPER V. DRAKE,

Defendant and Appellant.

F072184

(Super. Ct. No. 14CM7602)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge. (Retired Judge of the Kings Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Gaspar Drake, an inmate at Corcoran State Prison, was convicted of battery on a nonprisoner and obstructing a correctional officer in the performance of his duties. Drake argues reversal is required because the trial court abused its discretion when it excluded evidence concerning the victim’s past use of excessive force. We conclude no error occurred because the proposed testimony had very little, if any relevance, to the issue before the jury. We reach this conclusion because, according to the undisputed testimony, the correctional officer at which the proposed testimony was directed never touched Drake during this incident. Since this correctional officer could not have used excessive force in this case, the proposed testimony was properly excluded.
FACTUAL AND PROCEDURAL SUMMARY
The Information
The information charged Drake with battery by a prisoner on a nonprisoner (Pen. Code, § 4501.5), and obstructing a correctional officer in the performance of his duties (§ 69). The first count alleged Drake had suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b)-(i).
The Testimony
Correctional Officer Angela Scaife was employed at Corcoran State Prison on the day in question. She was assigned to perform patdown searches of prisoners exiting the dining hall. Drake was one of the prisoners she searched that day. When Scaife asked Drake to approach for a search, he appeared irritated but approached as directed. When Scaife searched Drake’s waist area, he pulled away and turned towards her. Drake complained about the search of the waist area, and became argumentative. Scaife explained a search of the waistband was necessary, but Drake continued to argue with her. She told Drake to return to his cell, but he continued to argue. Correctional Officer Bill Johnson ordered Drake to return to his cell. Drake began walking towards Johnson, and threatened Johnson.
As Drake and Johnson approached each other, Scaife ordered Drake to turn around and put his hands behind his back. Instead of complying with Scaife’s order, Drake struck Johnson on his left arm. Two other officers, Officer Flores and Sergeant Jesus Gonzales, approached to provide assistance, and Drake backed away. As he did so, he tripped and fell to the ground. The officers ordered Drake to lie down on his stomach, but Drake attempted to stand up. Flores sprayed Drake with pepper spray, after which Drake was compliant with orders.
Johnson testified that Drake was initially compliant with Scaife’s orders, but became tense when she began searching his waistband. Drake became argumentative and confrontational. When the search was completed, Drake was ordered to return to his cell.
Drake initially walked away from Scaife, but when he was approximately 10 feet away, he turned to face the officers. Drake was ordered by both Scaife and Johnson to return to his housing unit. Drake threatened to “kick [Johnson’s] ass.” Johnson ordered Drake to turn around with the intent of placing Drake in handcuffs. Drake approached Johnson in a rapid manner and swung at Johnson’s face. Johnson raised his hands to protect himself and the punch hit him in the forearm. Johnson stepped back and other officers subdued Drake. Johnson saw Drake fall, and believed another officer forced him to the ground.
Gonzales testified he was present during the search of Drake. After the search, Drake turned around and made a comment to Scaife. Drake told Scaife to stop pulling on his waistband. Scaife told Drake it was a normal part of the search and he should return to his cell. Drake began walking away and then turned and threatened to “kick [Johnson’s] ass.” Johnson and Scaife approached Drake and ordered him to turn around and put his hands behind his back so he could be placed in handcuffs. Drake took a step toward Johnson and swung at Johnson.
After Drake hit Johnson, Gonzales withdrew his baton and approached Drake. Drake took a step backward and tripped, falling to the ground. When Drake attempted to stand up, Gonzales swung his baton at Drake, but accidentally hit Flores on the thumb. Scaife escorted Flores from the area. Drake again attempted to stand up. Gonzales struck Drake on the left forearm with his baton. Drake finally placed himself in the prone position.
Drake testified in his defense. He admitted that Scaife searched him when he exited from breakfast. He asserted that when she did so, she gave him a “wedgy” by pulling his underwear up between the cheeks of his buttocks. This upset Drake, and as he left he told her to stop giving him wedgies when she searched him, as the same thing had happened in the past. As Drake continued to walk away, Johnson commented that Drake should have a shootout with the police. Drake understood the comment to indicate that Drake should be dead, which was insulting. Drake responded that Johnson should become a real police officer instead of a babysitter. Several of the correctional officers laughed at Drake’s comment. As Drake continued to walk away, he heard someone say “watch out.” Drake turned around and found Johnson behind him with Johnson’s hand almost in his face. Drake brushed Johnson’s hand away from his face. That’s when Flores sprayed pepper spray in his face. Drake bent over while he choked on the pepper spray. He then felt someone hit him on the arm, which caused him to fall down. Drake denied swinging at Johnson.
Arguments, Verdict, and Sentencing
The prosecutor argued the correctional officer testimony was credible, and Drake’s was inherently unbelievable. Defense counsel argued the inconsistencies in the correctional officers’ testimony were the result of the fabrication of a story to cover up for the excessive use of force.
The jury found Drake guilty as charged, and found the enhancement true.
The trial court concluded the prior strike conviction should be stricken, and then sentenced Drake to the midterm of three years for the battery count, and a consecutive term of eight months for the obstruction count.
DISCUSSION
Drake argues the trial court erred when it excluded the testimony of two witnesses he proposed to call in his defense. According to defense counsel, these witnesses, Francisco Lopez and Rodney Buckley, would testify that in two separate incidents Johnson used excessive force against them without justification. Johnson then allegedly fabricated excuses for the use of force, or threatened the inmates with additional punishment if they complained about the use of force. The trial court concluded that the probative value of the offered evidence was minimal, and an undue amount of court time would be consumed if the evidence was admitted because the prosecution would have to rebut the evidence thus creating two “mini-trials” within the main trial of Drake. It then exercised its discretion pursuant to Evidence Code section 352 to exclude the evidence.
Evidence Code section 352 grants the trial court discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the probability that its admission will (1) necessitate the undue consumption of time, or (2) create substantial danger of undue prejudice, or (3) create substantial danger of confusing the issues, or (4) create substantial danger of misleading the jury. The statute grants the trial court broad discretion in making determinations under Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 893.) We review the rulings of the trial court under the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) We will interfere with the trial court’s ruling only if the record demonstrates the trial court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The trial court did not abuse its discretion. The primary defect in Drake’s argument, both here and in the trial court, is that the proposed testimony had virtually no relevance to the issues to be decided by the jury. The jury was presented with two disparate descriptions of the same incident. The prosecution presented evidence that Drake became agitated when he was searched by Scaife, and hit Johnson when ordered to return to his cell. Drake, on the other hand, testified Johnson approached him from behind after Drake made a comment that embarrassed Johnson. Drake turned in response to a warning from other inmates, and made incidental contact with Johnson. Drake denied striking, or attempting to strike Johnson.
The proposed testimony of Lopez and Buckley did not support Drake’s version of the events. Drake did not testify that Johnson used excessive force against him, nor did he testify that he was aware of Johnson’s alleged reputation for using excessive force as an explanation for the incidental contact. Instead, he testified he turned around in response to a warning, thereby causing the incidental contact.
The evidence did bear some minimal relevance. Defense counsel could have argued the proposed testimony established Johnson had a propensity for approaching inmates from behind without warning. This would support Drake’s description of Johnson’s actions during this incident. However, this minimal relevance was far outweighed by the undue consumption of time this evidence would have necessitated. Not only would the two proposed witnesses testify, undoubtedly Johnson and other percipient witnesses would also be called to testify about the alleged incidents. The custodian of records would also need to testify to establish no complaints were lodged as a result of these alleged incidents. The prosecution may also have presented evidence challenging the veracity of the proposed witnesses, as well as additional evidence to challenge the testimony. In other words, it is likely as much time would have been spent on these two alleged incidents as was spent trying the charges against Drake. Because the proposed evidence had so little relevance to the charges against Drake, the trial court acted well within its discretion in excluding the testimony.
Drake argues the proposed testimony was relevant because it established the prosecution’s witnesses fabricated the incident to cover up for Johnson’s excessive use of force. This argument ignores the fact Drake did not testify that Johnson used any force against him, let alone excessive force. The force used against Drake was applied when Flores sprayed pepper spray in Drake’s face, and Gonzales struck Drake with a baton. The proposed testimony was unrelated to these officers, and was thus not relevant to the argument that excessive force was used in this case.
People v. Castain (1981) 122 Cal.App.3d 138, on which Drake relies, is inapposite. Castain was charged with battery on a police officer and resisting arrest. The officer in question, Robert Revak, testified Castain and a companion acted suspiciously when he drove by their parked vehicle, so he stopped and approached the vehicle. With the use of his flashlight, Revak observed what he believed to be narcotics in plastic bags on the front seat of the vehicle, and in Castain’s shirt pocket. Revak reached into the vehicle and grabbed some plastic bags from Castain’s shirt pocket. Castain then took them from Revak’s grasp. Revak ordered Castain out of the vehicle. When Castain refused, Revak pulled Castain from the vehicle. Castain resisted, and a struggle ensued during which Castain struck Revak. The struggle ended when other officers arrived. No plastic bags or narcotics were located when the vehicle was searched.
Castain described a different incident. He denied grabbing any plastic baggies from Revak, and testified he exited the vehicle when ordered to do so. Once out of the vehicle, Revak began assaulting Castain. Revak was hurt because he tripped and fell as he was pulling Castain across the street. On the way to the police station, Revak threatened Castain.
Castain’s defense contended he could not be convicted because Revak was not acting in the scope of his duties because the incident involved the use of excessive and unnecessary force. Castain offered the testimony of two witnesses who would testify that Revak had used excessive force against them. The trial court allowed one to testify, but excluded the testimony of the other witness. This witness would have testified that after he completed a field sobriety test, Revak assaulted him and arrested all of the occupants of the vehicle. The witness would also testify that on the way to the police station, Revak exchanged taunts with those he arrested, and one arrestee spat at Revak. Revak then stopped the police car, pulled out the driver, and assaulted him again. The trial court excluded this testimony concluding it bore minimal relevance to the issues, and would result in the undue consumption of time, confusing the issues, and misleading the jury.
The appellate court found the proposed testimony would have been highly relevant to the issue of whether Revak had a propensity to use excessive force against those he arrested or detained, and had, therefore, acted in the same manner in this case. (Castain, supra, 122 Cal.App.3d at p. 143.) Because of the substantial relevance of the proposed testimony, the appellate court concluded the trial court abused its discretion in excluding the testimony, and the abuse was prejudicial to Castain. (Id. at p. 144.)
The difference between Castain and this case is that Castain testified the offending officer used excessive force against him, while Drake did not. In fact, Drake did not testify or argue that Johnson used any force against him. Therefore, Castain is factually distinct, and inapposite.
Drake also argues the trial court erred when it relied on improper factors in making its ruling. First, Drake asserts the trial court improperly evaluated the credibility of the proposed witnesses, and relied on this evaluation in denying the motion. We disagree.
After holding the evidence was inadmissible, the trial court commented, “If you have evidence that there were any other evidence involving an official inquiry and any findings that might have been made with regard to complaints actually filed, that would be a different issue for the Court to consider, but that’s not what I’m being told is offered here. We’re offering flawed allegations unsubstantiated and essentially indefensible because we don’t have this other half dozen witnesses we need to fully flesh out the truth or the falsity of any such allegations.”
Drake reads this comment as an evaluation of the credibility of the proposed witnesses. We, on the other hand, view this comment as recognition that in the absence of a report and investigation conducted when the incident occurred, the truth or falsity of the proposed testimony would have to be determined in this case, necessitating the testimony of numerous witnesses. No error occurred.
Further, Drake complains because the prosecutor was aware of the proposed testimony long before trial, and could have prepared to meet their testimony. Drake also argues only Johnson would have to be called to rebut this proposed testimony. While perhaps the prosecutor had ample time to prepare, her preparation does not make the proposed testimony relevant. Moreover, appellate counsel assumes too much when he contends that only Johnson would be called to rebut the proposed testimony. The fact appellate counsel is not aware of any additional witnesses does not mean such witnesses did not exist.
Finally, Drake contends the trial court’s ruling violated his Sixth Amendment right to present a defense to the charges. However, “[a]pplication of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant’s right to present a defense.” (People v. Mincey (1992) 2 Cal.4th 408, 440.) While it is undisputed Drake had a constitutional right to defend against the charges, that right was not violated when the trial court applied ordinary rules of evidence in concluding the minimal probative value of the proposed testimony was outweighed by the danger of undue consumption of court time and confusing the issues.
DISPOSITION
The judgment is affirmed.