P. v. Rodriguez
Filed 2/7/07 P. v. Rodriguez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ, Defendant and Appellant. | 2d Crim. No. B187464 (Super. Ct. No. PA051732) (Los Angeles County) |
Jose Rodriguez appeals his conviction for sale of a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) He contends that the trial court abused its discretion and violated his constitutional rights to due process and a fair trial by excluding testimony regarding police misconduct in another and unrelated case. We affirm.
FACTS AND PROCEDURAL HISTORY
The Los Angeles Police Department conducts " buy-bust" operations where one undercover officer attempts to purchase drugs from a person on the street while other officers observe and provide safety for the " buy officer." On April 16, 2005, a " buy-bust" team saw Rodriguez in an area known for narcotics sales. Officer Edward Zavala approached Rodriguez and asked whether he had " material." Understanding that " material" referred to cocaine, Rodriguez asked Zavala how much he wanted. Zavala said he was looking for " a 20," slang for $20 worth of cocaine. Zavala and Rodriguez walked around the corner where Rodriguez asked for and received $20 from Zavala. Rodriguez walked out of Zavala's view and returned a few minutes later with cocaine. Rodriguez gave Zavala the cocaine and left the scene on his bicycle. Zavala signaled other officers that the transaction had been completed and walked away. Rodriguez was arrested a minute later. The pre-recorded $20 bill was not recovered and no drugs were found in Rodriguez's possession.
Officers Zavala and two other members of the " buy-bust" team testified to the above-stated facts at trial. Rodriguez testified that he did not sell drugs to Officer Zavala and that the police fabricated the charge against him.
Rodriguez was convicted of selling cocaine and admitted two prior convictions for purposes of Penal Code section 667.5, subdivision (b), and one prior serious or violent felony conviction for purposes of the three strikes law. He was sentenced to eight years in prison, consisting of four years for the offense, doubled to eight years as a second strike.
DISCUSSION
Rodriguez contends that the trial court erred by excluding, under Evidence Code section 352, the testimony of a defendant in another case who accused the police of fabricating evidence against him in another drug sale arrest by the same " buy-bust" team that arrested Rodriguez. We disagree, and conclude that there was no abuse of discretion.
A trial court has broad authority to exclude evidence under Evidence Code section 352 if its probative value is substantially outweighed by the probability that admission will necessitate an undue consumption of time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. (Evid. Code, § 352; see also, e.g., People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Ayala (2000) 23 Cal.4th 225, 301.) This discretion extends to exclusion of evidence offered for impeachment, or that is cumulative or pertains to a collateral matter. (People v. Mayfield (1997) 14 Cal.4th 668, 748; People v. Burgener (1986) 41 Cal.3d 505, 525 overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753, 756; see also People v. Wheeler (1992) 4 Cal.4th 284, 296 [courts should prevent trials " from degenerating into nitpicking wars of attrition over collateral credibility issues" ].) We will not disturb a trial court's ruling unless it is arbitrary, capricious and absurd, and results in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Rodriguez filed a Pitchess motion to obtain personnel records of officers on the " buy-bust" team including Officer Zavala. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) After an in camera review, the trial court released a complaint by Gary Morgan who claimed that he had been falsely arrested for selling drugs based on evidence fabricated by the police. He was arrested five days after Rodriguez's arrest by the same team that arrested Rodriguez.
The prosecutor sought an order admitting Morgan's prior convictions for impeachment in the event Morgan testified at trial, and stated to the court that he would make " a general 352 objection with regards to [Morgan's] testimony." Defense counsel stated that he would call Morgan as a witness, and that Morgan would testify that he had been falsely arrested for selling drugs to a police officer and that Officer Zavala was an observer who corroborated the buy officer's story. Defense counsel also disclosed that Morgan had no knowledge of the Rodriguez case. Because Morgan's case was still pending, it would have been uncertain, and perhaps unlikely, that he would have actually testified in Rodriguez's case, but that possibility had to be considered by the court.
The trial court excluded Morgan's testimony. The court stated that it had questions about testimony regarding fabricated evidence in a drug arrest of another person in an unrelated incident. The court acknowledged that the evidence would have some probative value because Morgan was arrested by the same " buy-bust" team a few days after Rodriguez but noted that, if the evidence were admitted, the jury would in effect be trying two cases. The court stated that Morgan's testimony and impeachment would include officer testimony and substantially lengthen the trial.
There was no abuse of discretion in the trial court's ruling. The court correctly concluded that the testimony would be unduly time-consuming and distract the jury by forcing the court to conduct a trial within a trial. If the evidence were admitted, the jury would have to determine whether Rodriguez sold cocaine to Officer Zavala, and also whether Morgan sold drugs to another officer under the watchful eyes of Zavala and other members of the " buy-bust" team. Necessarily the prosecution would attempt to impeach Morgan by proving that Morgan was guilty of the offense for which he was arrested.
The Morgan testimony would also have been collateral to the case before the court which concerned whether Rodriguez was guilty or not guilty. As Rodriguez argues, the Morgan testimony might bolster his defense because it concerned allegedly similar conduct by the police. The testimony, however, involved a different crime, different defendant, and Officer Zavala playing a different role in the two cases. The court also addressed the questionable probative value of the testimony based on Morgan's interest in avoiding conviction in his case and because he had prior convictions. " While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." (People v. Lavergne (1971) 4 Cal.3d 735, 742.)
Rodriguez argues that information disclosed in a Pitchess motion must be considered admissible because otherwise Pitchess motions would be futile. In essence, he claims that its purpose would be defeated unless a defendant is given an expanded right to have the results of a Pitchess motion considered by the jury at trial.
We reject this argument. A Pitchess motion is a discovery device. The admission of evidence obtained by or developed through a Pitchess motion, however, remains subject to the rules of evidence, including Evidence Code section 352. (See Alford v. Superior Court (2003) 29 Cal.4th 1033, 1061; Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 404.) Nothing in the Pitchess case or any subsequent cases concerning discovery of police personnel records supports the notion that information disclosed is necessarily admissible or subject to different rules of evidence. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027.)
We also reject Rodriguez's contention that exclusion of Morgan's testimony violated his right to due process and a fair trial. Although the federal Constitution guarantees criminal defendants an opportunity to present a defense, states retain broad latitude to establish rules excluding evidence from criminal trials provided the rules are not arbitrary or disproportionate to the purpose they serve. (United States v. Scheffer (1998) 523 U.S. 303, 308; Crane v. Kentucky (1986) 476 U.S. 683, 689-690; California v. Trombetta (1984) 467 U.S. 479, 485.) In particular, established rules of evidence such as Evidence Code section 352, which permit trial courts to exclude evidence whose probative value is outweighed by factors such as prejudice, undo consumption of time, confusion of the issues, or the potential to mislead the jury do not impair a defendant's right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. ___ [126 S.Ct. 1727, 1732]; Crane, supra, at pp. 689-690; People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Jennings (1991) 53 Cal.3d 334, 372.)
Rodriguez relies on a Ninth Circuit case which considered whether an evidentiary rule violated the defendant's constitutional rights. The Court of Appeals applied a test that considered the probative value of the excluded evidence on the central issue, its reliability, whether the evidence could be evaluated by the trier of fact, whether it was the sole evidence on the issue, and whether it was a major part of the defense. (Chia v. Cambra (9th Cir. 2002) 281 F.3d 1032, 1037 [reversed exclusion of a codefendant's self-inculpatory statements exonerating the defendant].) Chia is easily distinguishable on its facts, and even if applied in the instant case, the trial court could reasonably conclude that Morgan's testimony had limited probative value, was not
reliable, would confuse the jury, did not constitute the sole evidence concerning Rodriguez's defense, and was a significant but not a major part of the defense.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Charles L. Peven, Judge
Superior Court County of Los Angeles
______________________________
William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Robert F. Katz, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
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