P. v. Oeur
Filed 9/26/07 P. v. Oeur CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CHARLIE OEUR, Defendant and Appellant. | E040920 (Super.Ct.No. RIF124505) OPINION |
APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Robert M. Foster and Christine Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
After a jury trial, defendant was found guilty of second degree robbery in violation of Penal Code section 211 with an enhancement under Penal Code sections 12022.53, subdivision (b), and 1192.7 subdivision (c)(8), for using a firearm in the commission of the robbery.[1] Defendant was sentenced to 12 years in state prison.
On appeal, defendant contends his conviction for using a firearm during a robbery must be reversed because his Sixth and Fourteenth Amendment rights were violated when he was denied the opportunity to present his defense that the gun used in the robbery was a BB gun. Defendant contends that the cumulative effect of the following errors led to a violation of his Sixth and Fourteenth Amendment rights: (1) he was precluded from presenting expert testimony and photographs; (2) his examination of an expert witness was improperly limited; and (3) the trial court made an improper comment regarding the victims testimony. Defendant also contends that any errors should be reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].
FACTS
On May 25, 2005, defendant approached the victim and robbed her of $74. During the robbery, defendant pointed a gun at the victim. The gun was not discovered during the arrest and was not produced at trial.
During the Evidence Code section 402 hearing, the People made a motion to exclude defense evidence of photographs from the internet of BB guns that appear to be firearms. The trial court granted the Peoples motion to exclude the photographs. The court reasoned that since there was no evidence the weapon used in the robbery was a BB gun, it would not be acceptable to introduce photographs of BB guns. However, the court did suggest the defense could provide the foundation for such photographs through testimony that a BB gun was used in the robbery, rather than a firearm.
Defendant did not testify. However, during trial, the court allowed the defense to call Officer Glenn, the officer who responded to the scene of the robbery, as their own witness on the topic of toy guns that look similar to firearms. The victim testified as to the robbery and the features of the gun used by defendant.
The jury found defendant guilty of second degree robbery in violation of section 211 and personally using a firearm during the robbery within the meaning of sections 12022.53, subdivision (b), and 1192.7, subdivision (c)(8).
DISCUSSION
Defendant contends his conviction for using a firearm during a robbery must be reversed because his Sixth and Fourteenth Amendment rights were violated when he was precluded from presenting a complete defense. The right to present a defense is a component of the federal guarantee of due process of law. Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citations], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citation], the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. [Citations.] (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636.)
Defendants defense theory regarding the firearm enhancement charge was that the victim had been faced with a BB gun rather than a firearm. A violation of sections 12022.53, subdivision (b), and 1192.7, subdivision (c)(8), requires the use of a firearm. A firearm is defined as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion. ( 12001, subd. (b).) However, a BB gun is defined as an instrument that expels a projectile, such as a BB or a pellet, not exceeding 6mm caliber, through the force of air pressure, gas pressure, or spring action, or any spot marker gun. ( 12001, subd. (g).) A BB gun would not qualify as a firearm for the purposes of sections 12022.53, subdivision (b), and 1192.7, subdivision (c)(8). (See People v. Vasquez (1992) 7 Cal.App.4th 763, 768.)
Defendant contends the cumulative effect of the following alleged errors led to his constitutional rights being violated: (1) he was precluded from introducing expert testimony and photographs of BB guns that appear to be firearms; (2) his examination of Officer Glenn was improperly limited; and (3) the trial court made an improper comment regarding the victims testimony, which reduced the Peoples burden of proof. Furthermore, defendant contends that since his federal constitutional rights were violated, any error should be reviewed under the standard put forth in Chapman v. California, supra, 386 U.S. at page 24 (requiring reversal unless the error was harmless beyond a reasonable doubt), rather than the standard espoused in People v. Watson (1956) 46 Cal.2d 818, 836 (requiring reversal if it is reasonably probable that a different verdict would have been reached absent the error).
A. Waiver
During trial, defendant did not predicate his objections to the evidence on the Sixth and Fourteenth Amendments. It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.] (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also People v. Brown (2003) 31 Cal.4th 518, 546) Since defendant did not base his objections at the trial court on constitutional grounds, the claims were not preserved for review. However, we will decide the claims on the merits since defendant asserts it was the cumulative effect of the errors that violated his rights, rather than the individual errors.
B. Exclusion of Photographs and Expert Testimony
a. Photographs
Following an Evidence Code section 402 hearing, the trial court precluded defendant from introducing photographs from the internet of BB guns that appear to be firearms.[2] Defendant contends the photographs were critical to creating reasonable doubt regarding the firearm enhancement.
The party offering demonstrative evidence bears the burden of showing that the foundational requirements have been satisfied. [Citation.] The determination whether to admit demonstration evidence requires the trial court to decide whether the evidence is of any value in aiding the jury. [Citation.] The trial courts ruling on admissibility will be reversed only where the trial court abused its broad discretion. [Citations.] (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1388, superseded on other grounds by CALJIC No. 10.41, as recognized in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537.)
During the Evidence Code section 402 hearing, the People asked the trial court to exclude the introduction of photographs of BB guns that look similar to firearms based on the theory that they were not photographs of the gun used in the robbery and, therefore, might cause the jury to speculate that the gun used in the robbery was a BB gun. Defense counsel offered to provide foundation for the photographs through an expert witness who would testify that BB guns, such as the ones in the photographs, are easily mistaken for firearms. Defense counsel went on to argue the photographs were relevant to rebut the victims testimony that the weapon used in the robbery was a firearm.
The court disagreed with defendant, ruling in favor of the Peoples motion to exclude. The court explained that there was no evidence to suggest the weapon used in the robbery was a BB gun and, therefore, it would not admit photographs of BB guns. The court reasoned that the photographs were the equivalent of go[ing] down to a dime store and buy[ing] a bunch of toys and say[ing], here, none of these are deadly weapons or firearms. The court further explained that [the defense is] entitled to put on the testimony that . . . what was used in this robbery was a BB gun and not a firearm. But [the defense is] not allowed to put on testimony of someone to bring in a bunch of toys and say these are BB guns that are not the same.
It is proper to introduce objects similar to those connected with the commission of a crime for purposes of illustration. [Citation.] [D]emonstrative evidence is admissible for the purpose of illustrating and clarifying a witness testimony so long as a proper foundation is laid. [Citation.] [I]t is paramount that it be established that the [weapon] was substantially similar to that which it seeks to illustrate. [Citation.] (People v. Roldan (2005) 35 Cal.4th 646, 708.) [O]nce a proper foundation has been laid, admission [is] within the sound discretion of the trial court. (Ibid.)
In the instant case, there was no evidence that a BB gun had been used in the robbery. The victim claimed the weapon she saw was a firearm, and defense counsel offered no proof that the BB guns in the photographs looked similar to the weapon that the victim described.
In People v. Vaiza (1966) 244 Cal.App.2d 121, the defendant was accused of assault with a deadly weapon upon a police officer, but claimed the weapon he used was a toy gun and not a firearm. (Id. at pp. 122, 124.) The prosecution introduced a firearm into evidence on the ground that some of its details appeared similar to the object used by the defendant in the assault. (Id. at p. 125.) The weapon used during the assault was not recovered, but the officer was able to describe some of the features of the weapon. (Id. at pp. 124-125.) However, the appellate court believed there were more differences between the object seen by the police and the exhibit admitted in evidence than . . . correspondences. (Id. at p. 125.) The appellate court found the prosecution failed to provide a proper foundation for introducing the revolver as illustrative evidence, questioning: What, after all, did it illustrate? (Id. at p. 126.) The court indicated that without more evidence in the record as to what the gun looked like or the fact that it was a revolver, it was improper to introduce such demonstrative evidence. (Ibid.)
In the instant case, we are confronted with a similar issue. The photographs are demonstrative of BB guns that appear to be firearms. However, there is no evidence in the record that the weapon used by defendant was a BB gun or that it even resembled the BB guns in the photographs. We find defendant failed to lay a sufficient foundation for the demonstrative evidence and the trial court did not err by excluding it.
The evidence was thus properly excluded on state law grounds and no constitutional violations resulted from this ruling. It is well established that application of the ordinary rules of evidence do not impermissibly infringe on a defendants constitutional right to present a defense. (People v. Mincey (1992) 2 Cal.4th 408, 440.)
b. Fifth Amendment
Defendant contends the trial courts ruling that the photographs and testimony could not be admitted, unless defendant took the stand to provide foundation for the evidence, violated defendants Fifth Amendment right to not be compelled to be a witness against himself. Defendant claims he was left with the choice of remaining silent, i.e., not offering his recorded statement as part of his defense, or being forced to take the stand to lay the foundation for necessary evidence.
The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself or herself or otherwise provide the state with evidence of a testimonial or communicative nature. (Kastigar v. United States (1972) 406 U.S. 441, 444-445 [92 S.Ct. 1653, 32 L.Ed.2d 212.)
We do not find the courts ruling would have compelled defendant to testify in order to present his defense theory. In context, the court was simply informing defendant that it would be necessary to provide foundation for the photographs, which meant providing evidence that a BB gun was used in the robbery or at least that the weapon used in the robbery looked similar to the BB guns in the photographs. Although at one point, the court stated, [Y]our client is free to testify that thats what it was, was a BB gun, it later clarified, [Y]oure entitled to put on the testimony that . . . what was used in this robbery was a BB gun and not a firearm.
We conclude the trial court did not compel defendant to testify and, therefore, did not violate his Fifth Amendment privilege against self-incrimination.
c. Expert Testimony
As to the expert testimony, defendants counsel misstates the trial courts ruling. The trial court did not preclude defendant from presenting an expert witness; it only ruled the photographs were excluded, and necessarily, any testimony about such photographs. Ultimately, the People did not move to exclude an expert witness and the court did not rule that expert testimony would be inadmissible, except in reference to the excluded photographs. This was confirmed when the trial court allowed the defense to call Officer Glenn as an expert to testify that BB guns can be mistaken for firearms. When the People objected on the basis that such testimony had been excluded during the Evidence Code section 402 hearing, the court overruled the objection stating the testimony was on a different topic than the pretrial hearing, i.e., Officer Glenn was not discussing the photographs. Accordingly, we do not find any error in regards to the exclusion of expert testimony, as the court only excluded the photographs.
C. Limitation of Direct Examination
Defendant contends that the trial court deprived him of his constitutional rights when it limited defense counsels inquiry as to Officer Glenns experience with distinguishing toy guns from firearms. Specifically, defendant contends the court erred when it found Officer Glenns experience to be irrelevant because it was not comparable with that of a layperson, such as the victim.
We review the trial courts ruling to exclude or limit the scope of expert testimony under an abuse of discretion standard. (People v. San Nicolas (2004) 34 Cal.4th 614, 663.) As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.] (People v. Page (1991) 2 Cal.App.4th 161, 187.)
After cross-examination and recross-examination, the trial court allowed the defense to question Officer Glenn as their own witness on direct examination as to BB guns that look like firearms. On direct examination, Officer Glenn testified to seeing five toy guns, over the course of his career, which were difficult to distinguish from firearms.
Defense counsel posed the question to Officer Glenn, Are there in fact some places that -- some companies that sell realistic-looking fake guns just kind of -- and thats the selling point? The People objected on the ground that this topic of testimony had been excluded as part of a pretrial hearing. The trial court allowed the defense to continue questioning Officer Glenn on the subject, finding the topic was different . . . from the pretrial motion.
Defense counsel then asked, [O]f these approximately five realistic-looking fake guns that youve seen, would you be able to tell the difference between the realistic-looking fake and a real gun? The People objected based on the relevance of the question. The court sustained the objection citing Officer Glenns ability to distinguish toy guns from firearms is not comparable to that of a layperson such as the victim.
As the questioning continued, defense counsel posed a similar question, So typically you would go and answer a call, recover the alleged gun. How would you determine that it wasnt an actual firearm? The People again objected based on relevance; however, at that point, the court permitted the inquiry by phrasing the question in its own words, When you showed up, for instance, at a school, did it take you some time to discover whether a gun was real or whether it was a fake gun? Officer Glenn responded, Usually it takes physically holding the gun, examining it, the way that the gun functions, such as the different parts and how they work. After the response, defense counsel continued to examine the witness.
Contrary to defendants contention, the court did admit testimony from Officer Glenn regarding his experience distinguishing toy guns from firearms. Although the trial court first ruled the question regarding Officer Glenns experience in distinguishing toy guns from firearms was irrelevant, it later changed course by permitting the inquiry. Accordingly, we find no abuse of discretion based upon an improper limitation of defendants direct examination of Officer Glenn.
D. Judges Statement During Trial
Defendant claims that his Sixth and Fourteenth Amendment rights were violated by a comment made by the trial court during the direct testimony of the victim. On direct examination, the People questioned the victim extensively regarding her observations of the weapon used in the robbery. In the course of that examination, the defense made an objection based on a lack of foundation. While sustaining the defenses objection, the trial court commented, I think shes made a sufficient description of what she saw as a real gun. Leave that subject and go to something else.
Defendant contends this comment lessened the Peoples burden of proof as to the firearm enhancement, because the jury likely interpreted the courts comment as indicating that the victims testimony was sufficient to prove that the gun used in the crime was a firearm and not a BB gun.
A California trial court may comment on the evidence . . . so long as its remarks are accurate, temperate, and scrupulously fair. [Citation.] Of course, the court may not express its views on the ultimate issue of guilt or innocence or otherwise usurp the jurys exclusive function as the arbiter of questions of fact and the credibility of witnesses. [Citation.] The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made. [Citation.] (People v. Melton (1988) 44 Cal.3d 713, 735.)
The comment by the trial court did not state that the court believed the weapon to be a firearm, rather that the victim described what she saw as a real gun. Throughout her testimony, the victim repeatedly stated that she believed the gun used in the crime was a firearm. The trial court was accurately summarizing the testimony of the victim, while giving a reason for sustaining the defenses objection. The trial court was not imposing its own opinion as to whether or not the weapon was a firearm, or to the credibility or accuracy of the victims testimony.
Moreover, the trial court properly read CALJIC No. 17.30 to the jury after the close of testimony, stating: I have not intended by anything that I have said or done or by any questions that I may have asked or by any ruling that I have made to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness. If anything I have said or done has seemed to you to so indicate, disregard it and form your own conclusion.
The remark by the trial court did not violate defendants Sixth or Fourteenth Amendment rights because the comment was accurate, temperate, and scrupulously fair. The trial court did not express its views on the ultimate issue of guilt or innocence, or otherwise usurp the jurys exclusive function as the arbiter of questions of fact and the credibility of witnesses.
E. Conclusion
We have found no errors in the actions of the trial court. Therefore, we find no violation of defendants Sixth and Fourteenth Amendment rights.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
KING
J.
MILLER
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Defendant requests in his appellants opening brief that we take judicial notice of the types of authentic-looking fake guns that are available on the market today as demonstrated at
