P. v. Moran

Filed 3/14/07 P. v. Moran CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Pablo Moran appeals from his conviction of misdemeanor assault,misdemeanor false imprisonment and misdemeanor battery, contending that the trial court violated his Sixth Amendment right to confrontation by limiting the scope of cross-examination of the complaining witness and that the court abused its discretion in denying his motion for a new trial. We find no error and shall affirm.

Factual and Procedural Background

Defendant was charged by information with assault with intent to commit rape (Pen. Code,[1]  220, 261, subd. (a)(2); count 1), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 2), felony false imprisonment ( 236; count 3), felony sexual battery ( 243.4, subd. (a); count 4), and second degree robbery ( 212.5, subd. (c)), alleged to be a serious felony within the meaning of section 1192.7, subdivision (c)(19) (count 5). At the jury trial, evidence was presented of the following facts.

On May 5, 2005, at about 10:00 p.m., Susanna M. was sitting on a bench in McLaren Park in San Francisco. She was approached by two males, later identified as the defendant and Troy Henry, who sat on a bench about five feet away. Defendant was drinking from a bottle of Vodka and offered Susanna a drink, which she pretended to take. Both men moved to the bench on which she was sitting and began talking to her and touching her shoulders and legs. She pushed the men away and moved to the other bench. When she stood again, the defendant pushed Henry on top of her, and she wielded her key chain, holding her keys, nail clippers and a pocket knife, injuring Henrys hand. According to Susanna, she tried to walk away but was grabbed from behind by defendant, who began kissing her cheek. She resisted physically and verbally, and hit defendant on the side of his forehead with her keychain. Susanna turned to leave, but defendant pushed her to the ground, threw himself on top of her, and put his hands around her neck. Susanna struck defendant with her keychain a second time, and continued to struggle. Susanna testified that defendant had his hands around her neck, attempting to choke her, for 10 to 12 minutes.

During this struggle, Henry returned to his car, which was parked several feet away. Defendant called Henry, who returned to the scene and asked defendant what he was doing. Defendant told Henry to grab Susannas cellular phone, which was in her hand, and said he would get off of her when they had the phone. Henry obeyed, defendant released Susanna, and Henry helped her off the ground.

According to Susannas continuing testimony, Henry then asked her and defendant to help him move his stalled car out of the park. Susanna stayed with the men because she wanted to retrieve her cell phone. At some point, defendant left the scene and Henry returned Susannas phone. After unsuccessful attempts to move the vehicle, Henry escorted Susanna out of the park and she returned to her nearby home.

Officers investigating the scene found a broken liquor bottle next to the benches, blood on Henrys car and on paper towels around the car, and a heart-shaped toy. The police report noted that Susanna had scrapes on her arms and knees, but no red marks, bruising or scrapes around her neck. The parties stipulated that some of defendants facial injuries were pre-existing.

Henry testified that during the altercation between Susanna and defendant he was in his car tending to his injured hand. When defendant called him, he approached and saw defendant pinning Susanna to the ground. Susanna had a knife in one hand and her cellular phone in the other, and defendant yelled to Henry to grab the knife. Henry took both the knife and the phone from her, defendant stood and the three walked back to help move the vehicle. Defendant later left the scene and Henry returned Susannas phone but threw the knife away.

Prior to the start of trial, the court ruled on the admissibility of evidence defendant proposed to offer to impeach Susannas credibility. The court permitted defendant to present evidence that Susanna had previously been arrested for being intoxicated in public and then for the first time claimed that she had been raped on two prior occasions. The court also ruled that the defense could impeach Susanna with evidence that she claimed she had been raped again in 2003, but first reported the crime a week after the alleged incident and only after a $500 check from the alleged rapist bounced. Additionally, the court permitted sanitized evidence of conduct committed while Susanna was a minor, and pursuant to stipulation, the jury heard that Susanna M., in August of 2003, while a 17-year-old juvenile, admitted to engaging in criminal conduct evincing moral turpitude.

Under Evidence Code section 352, the court excluded evidence that Susanna made extortion threats in connection with the asserted rape in 2003. The proffered evidence consisted of a telephone answering machine message in which an unknown male voice threatened the alleged rapist with bodily harm if he did not repay Susanna $500 owed to her, and also statements by Susanna that she would drop the rape charges if the accused paid her the $500. The court excluded this evidence, explaining that there was no claim of extortion in this case, that the evidence would be distracting and necessitate undue consumption of time, and that the evidence was too collateral and excessively prejudicial. During trial, defendant renewed his request to impeach Susanna with the extortion evidence, but the court adhered to its ruling.

The jury acquitted defendant on a number of counts, including felony assault with the intent to commit rape, felony assault by means of force likely to produce great bodily harm and the lesser-included offenses of misdemeanor assault, felony false imprisonment, felony sexual battery and misdemeanor sexual battery. The jury found defendant guilty of misdemeanor assault, misdemeanor false imprisonment and misdemeanor battery. Defendants motion for a new trial was denied. The court suspended the imposition of sentence and placed defendant on unsupervised probation for three years with county jail for time served. Defendant timely appealed.

Discussion

Limited Scope of Cross-examination

The Sixth Amendments confrontation clause guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.  (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) This right is incorporated in the Fourteenth Amendment, and therefore secured for defendants in state as well as federal criminal proceedings. (Pointer v. Texas (1965) 380 U.S. 400, 403.) The fundamental purpose of this right is to secure for the opponent the opportunity of cross-examination, which is the principal means by which the believability of a witness and the truth of his testimony are tested. (Davis v. Alaska (1974) 415 U.S. 308, 315-316 (Davis).)

The confrontation clause, however, does not prohibit the court from restricting the scope of cross-examination. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, . . . prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant. (Van Arsdall, supra, 475 U.S. at p. 679.) The trial courts decision to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal. 4th 641, 705.)  [U]nless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesss] credibility[,] . . . the trial courts exercise of its discretion . . . does not violate the [Confrontation Clause].  (People v. Cornwell (2005) 37 Cal. 4th 50, 95.)

Here, the court did not abuse its discretion. Defendant was given ample opportunity to impeach Susannas credibility. It was admitted that Susanna previously engaged in criminal conduct evincing moral turpitude. Evidence was received that when Susanna was previously arrested for public drunkenness, she told the officer that she had been raped twice, although her mother testified that Susanna never previously informed her of those incidents. Susanna also testified that she had been raped five or six times, but she could not remember when. Although the court excluded evidence that Susanna attempted to extort money from another man she accused of raping her, the jury was permitted to hear that Susanna telephoned the man she accused, threatening to tell the police what he did, that she failed to report the rape until one week after it occurred, that she reported the rape only after the alleged rapists $500 check bounced, and that after reporting the rape she ignored the inspectors request that she be examined at the hospital to preserve the evidence. Any additional evidence on the subject was properly excluded as cumulative and of limited relevance since there was no allegation of extortion in this case. (People v. Chatman (2006) 38 Cal. 4th 344, 373 [holding that  [i]mpeachment evidence other than felony convictions entails problems . . . [so] courts may and should consider . . . whether the admission of such evidence might involve undue time, confusion, or prejudice ].) In addition, here additional impeachment evidence was admitted that if a woman were choked for 10 to 12 minutes, as Susanna claimed defendant had done to her, distinctive marks on her neck would have been visible for several hours after the incident.

Defendant relies on Davis, supra, 415 U.S. 308and Van Arsdall, supra, 475 U.S. 673, but both are readily distinguishable. In Davis, defendant was prohibited from developing for the jury the issue of bias of a key prosecution witness. (Davis, supra, 415 U.S. at p. 318.) The witness had burglarized two cabins while a juvenile and was on probation. (Id. at p. 311.) Defendant sought to show that the witness was concerned about his own probationary status and made a hasty identification to shift suspicion away from himself. (Ibid.) Although the defendant was permitted to ask if the witness was biased, he was unable to bring out any facts, including the fact of the juvenile court adjudication and probation, that would have tended to show lack of impartiality. (Id. at p. 318.) The Supreme Court held that the significant limitations placed on defendants ability to cross-examine the key witness violated defendants right to confrontation. (Id. at pp. 318-319.)

In Van Arsdall, supra, 475 U.S. at page 679, the court prohibited all testimony relating to a witnesss potential bias. The state had dismissed a drunkenness charge in exchange for the witnesss cooperation, but the court barred any cross-examination regarding possible bias related to that agreement. (Ibid.) By cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the courts ruling violated [defendants] rights. (Ibid., italics added.)

Unlike the circumstances in Davis and Van Arsdall, where virtually all evidence that would have significantly impeached the witnesses credibility was excluded, the jury here heard substantial evidence tending to impeach Susannas credibility: evidence of prior criminal conduct, evidence contradicting her claim that defendant strangled her, and evidence casting serious doubt on the truthfulness of prior accusations of rape that she had made. The jury did hear some testimony suggesting that she had used the threat of a rape allegation to accomplish other objectives.[2] The exclusion of the additional evidence, which was partially redundant and might easily have diverted attention from the facts in dispute, was well within the trial courts discretion. (Van Arsdall, supra, 475 U.S. at p. 679.)

Even if the court erred, the error was harmless. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. (Van Arsdall, supra, 475 U.S. at p. 684.) Undoubtedly reflecting the effectiveness of the impeachment evidence that was received, the jury clearly did not find Susanna entirely credible, as indicated by the verdicts finding defendant not guilty on all four felony counts. The basic facts supporting the misdemeanor charges of false imprisonment and assault and battery were not dependent on Susannas testimony, but were also established by Henrys testimony. Henry recounted that Pablo [was] on top of her, holding her hands as if he were holding somebodys arms down. (See CALJIC Nos. 9.00, 16.135, 16.140 [defining assault, false imprisonment and battery].) In light of Henrys uncontradicted testimony, there is no reasonable possibility that additional impeachment of Susanna would have affected the jurys findings on these charges.

Denial of Motion for New Trial

Defendant contends that the court erred in denying his motion for a new trial. The motion was based on the same assertion that he should have been permitted to introduce the evidence concerning Susannas extortion threats and on the ground of newly discovered impeachment evidence that the rape charges against another man whom she had accused were dismissed due to Susannas lack of credibility.[3] The dismissal occurred after the trial in this case, but before the motion for new trial was heard. As discussed above, however, the exclusion of the extortion evidence was not error, and therefore provided no basis for granting a new trial. ( 1181, subd. (5).) The disposition of the charges against another individual who Susanna accused of rape was hearsay and of doubtful admissibility in the trial against defendant. In all events, such evidence would have been cumulative and hardly such that a different result on retrial was probable. (See People v. Beeler (1995) 9 Cal. 4th 953, 1004.) The determination of a motion for a new trial    rests so completely within [the trial courts] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appear.    (People v. Musselwhite (1998) 17 Cal.4th 1216, 1252.) The trial court did not abuse its discretion in denying defendants motion.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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

[2] During cross-examination of Susanna, the following exchange occurred, to which no objection was made:

Susanna: . . . I remember threatening him.

Mr. Bassan [defense attorney]: How did you threaten him?

Susanna: To tell the police what he did.

Mr. Bassan: If he didnt pay you the $500?

Susanna: I really dont remember. It was a long time ago.

[3] Defendant also asserted that the court erred in requiring him to present a sanitized reference to Susannas juvenile offense, rather than permitting him to describe the circumstances of that assault, and that he wished to present a newly discovered witness, the victim of that earlier assault. Defendant appears to have abandoned these arguments on appeal, which in all events have little merit.