P.v . Calzaretta

Filed 9/26/07 P.v . Calzaretta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed as modified.

Cara DeVito, 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, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent

A five-count information charged defendant Terry Allen Calzaretta with assault with a deadly weapon other than a firearm (Pen. Code,^[1] 245, subd. (a)(1); a felony), and possession of a prohibited weapon ( 12020, subd. (b)(1); a felony); willfully resisting, delaying, or obstructing a peace officer ( 148, subd. (a)(1); a misdemeanor); and two counts of vandalism ( 594, subd. (b)(2)(A); both misdemeanors). After the jury convicted defendant on all counts, the court sentenced him to state prison for three years and eight months, consisting of three years on the first count, plus eight months on the second to run consecutively; defendant was also sentenced to 180 days in county jail on each of three misdemeanors, with credit for time served. Additionally, the court directed defendant to provide victim restitution pursuant to section 1202.4 and to submit blood and saliva specimens pursuant to section 296. He appeals, arguing the court erred in (1) excluding potentially impeaching evidence of a victims probation condition prohibiting the possession of weapons; (2) ordering restitution in favor of an individual who was not a victim of any crime for which he was convicted; and (3) ordering the involuntary collection of DNA samples. Only his second contention has merit and we reverse the restitution order accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2005, Helene Aronson (Aronson), Raymond and Donna Hill (Hill, and Mrs. Hill respectively, and, collectively, the Hills), Kim Huntley (Huntley), and Frederick Taylor (Taylor), were all residents, along with defendant, at a multi-unit dwelling compound located in Highgrove, an unincorporated community in northern Riverside County. The compound included a main house, containing four bedrooms; a converted garage containing two bedrooms and a living room; a trailer situated in front of the main house; and a smaller trailer parked in the back yard. A curtain divided the living room in the converted garage into two parts, one of which was occupied by defendant; the second part was occupied by Aronson, defendants friend for 11 or 12 years. Taylor resided in one of the bedrooms in the main house. The front trailer was occupied by Hill and Mrs. Hill; Huntley lived in the trailer in the rear.

Early in the evening on September 15, 2006, while there was still daylight, Aronson went to the Hillss trailer, where the Hills were watching television. Aronson, who seemed upset, informed the Hills that defendant was getting out of hand and that some of the neighbors were getting upset by his behavior. Hill went outside to investigate and talked to defendant, who was in the front yard. When Hill saw that defendant looked okay and talked okay, he went back to the trailer and told Aronson to go home, that everything was all right.

At around 1:30 a.m., while the Hills were asleep in their trailer, Aronson again came over. According to Hill, Aronson would come to the trailers side window, which they would leave open in case she had a problem. Talking through that window, Aronson told the Hills that defendant was still out of control, was acting very agitated, and was frightening her. She asked them to call the police. The Hills, not wanting to get involved, went back to sleep, and Aronson returned to her own house.

Within an hour, Aronson was back at the Hillss trailer. She was very upset, as she had seen defendant pick up Huntleys dog^[2]and, holding it in one hand, throw it against the door. Defendant then went out the front door, and it was at that point that Aronson went to the Hills, to ask them to call the police. According to Aronson, defendant, for no apparent reason, had started hitting the walls and yelling. She became afraid for her own safety. Aronson was almost hysterical, and Mrs. Hill immediately got up and this time escorted her to the main house, where the only telephone in the compound was situated. Because there was no electricity, about three minutes elapsed before they were able to find the phone.

Even before Aronson arrived, Mrs. Hill had heard a thump, followed by a male voice which she recognized to be that of defendant. Hill had also been awakened by a loud bang, after which he heard a dog squealing and then whimpering. He then heard Aronson yelling for Mrs. Hill as she approached the trailer. He also heard Aronson saying something about a dog being thrown against the door.

Although he did not want to get involved, Hill knew when he heard the dog that he was going to get involved, one way or another. He was not concerned for himself at that point because he did not hear defendant; however, he was concerned for the safety of both his wife and Aronson. Hearing the dog squeal made him concerned that something was going on and that someone was agitated, although he did not then know all the circumstances.

After Mrs. Hill had left with Aronson, Hill also exited the trailer. As he went out, he grabbed a machete which he kept near the door. He explained that when he heard what was going on, his instinct was to grab something for his protection. Hill had used the machete, which was 12 inches long not counting the handle, for cutting weeds around [his] trailer and the driveway . . . because it worked good for that. He described it as just the handiest thing if somebodys going to break in my trailer. I didnt live on the best block in town, I had to have something there to defend myself. And basically thats what it was all about. Although he did not view the machete as a weapon, he admitted that he would have no problem using it as such if he had to. Hill had never previously had a confrontation with defendant. Nor had he ever been convicted for conduct of a violent nature.

At some point, Hill was able to hear defendants voice. He had just observed his wife and Aronson entering the main house when he heard defendant coming around the corner with his dog, a Pit Bull, on a chain. Hill was able to tell that defendant was mad [b]ecause of the aggressive way that he was coming around the yard with the dog on the chain. The first thing he heard defendant say was something like, You bitches think youre going to call the police, well, Im going to put a stop to that. Hill thought that defendant was going to hurt his wife and Aronson. Hill then told defendant not to set foot on the property. Stay where you are, go back in the house, youre not going to touch my wife. Things in that manner, but with a little more vocabulary than that. While he was talking to defendant, he had the machete wrapped behind [his] head like a baseball bat. He was about 19-20 feet away from defendant. When Hill told defendant to stay away, defendant shuddered. Hill said he never intended to swing the machete at defendant, but rather, that he was using it merely to threaten him. I mean I could have swung it, but Im not crazy. I swore at him. I told him not to take another step forward. I dont know exactly what I said. I know I said some bad words in there. And that Im going to cut his head off probably. Im not exactly sure how I said it, but pretty much I tried to bluff him into not coming any further than what he did.

Defendant then took off and ran right at [Hill], full blast. He knocked Hill against the side of the trailer, and when Hill bounced off the trailer, he immediately dropped the machete. Hills head and shoulders went underneath the trailer, and [his] legs landed underneath the tailgate of the truck or the back end of the pickup truck. Defendant was wearing a heavy shoe, some type of boot. First he stomped on Hills shoulder and then on his head, and kicked him once in the head. As Hill stood up, he saw defendant with full possession of the machetein both hands, between his legs. Hill was then hit with the machete in his upper thigh. He was also hit a second time, in front of his rib cage, but he was unaware of it at the time. After defendant swung the machete at him, Hill did not see it again.

Back at the main house, before Mrs. Hill was able to make the call, she heard her husband yelling, [H]elp me. Aronson could see defendant and Hill fighting; however, she did not see who started and did not recall seeing a weapon. Nor did she see the end of the fight, as she was already in the house. She only knew that Hill came inside and said that defendant cut him with a machete, and that there was blood on Hills leg.

Mrs. Hill exited the house at the same time as Taylor. By then, defendant had backed off towards the street. When Taylor asked what was going on, defendant immediately lunged at him^[3]the same way he had lunged at Hill. Defendant knocked Taylor into the fence and into the trash cans and bags. Everyone was hystericalHill was trying to get his wife into the house and was also trying to find something with which to get defendant off Taylor.

Eventually Hill found an aluminum pot and hit defendant on the back of his head. It did nothing, however, and defendant persisted in what he was doing as if Hill had never hit him. Hill then hit defendant again, after which defendant turned around and looked up at [Hill], and then he jumped up. Thats when Hill grabbed Taylor and pulled him up.

Hill went into the house, along with his wife, Aronson and Taylor. He then saw a chair come through the window, and while he did not see who threw the chair, he believed it was defendant because there was no one else outside.

Mrs. Hill eventually called 911 and the deputies arrived shortly thereafter. Despite his recalcitrant behavior, defendant was eventually apprehended; however, it took three deputies to handcuff him. After being placed in the rear of the patrol car, he caused serious damage to the interior and the windows, and even bit into the cars vinyl seat, ripping out chunks and spitting them at the officers outside. Eventually he was placed in leg restraints and a spit mask. He refused to comply with demands to stop what he was doing, and even the use of pepper spray by the deputies did not deter him. Following his arrest, a pair of brass knuckles were found in his pants pocket. The machete was never located.

At the scene, Hill was interviewed by Deputy Arguello of the Riverside County Sheriffs Department. According to Arguello, Hill did not say that he had threatened defendant by saying he would cut off his head. Nor did Hill say that defendant had threatened either Mrs. Hill or Aronson. Further, Hill did not say that he was afraid for Aronsons safety, but rather, that he was afraid for his own safety. Hill told Arguello that when he came outside of his trailer he was holding the machete, but did not tell him where it had been stored. Hill said that he had a struggle with defendant and that at some point he (Hill) had dropped the machete. Hill did not say that defendant swung the machete at him. Rather, Hill said that defendant picked up the machete and started to make stabbing motions with it towards Hill, after which defendant stabbed Hill in the left inner thigh as he was trying to get up. According to Arguello, Taylors version of events was consistent with Hills. Arguello also said that Hill told him that while fighting with defendant he was able to grab defendant in a bear hug; however, Hill denied making that statement to Arguello.

DISCUSSION

A. The trial court did not abuse its discretion in precluding the defense from impeaching Hill with evidence that a probation condition prohibited him from possessing a dangerous weapon.

At trial, Hill was permitted to testify that he had been convicted in 2004 of felony embezzlement. However, the court sustained the prosecutions relevancy objection when defense counsel asked Hill if he was on probation for that conviction. Counsel then asked Hill if he is permitted to own weapons, whereupon the prosecutor again interposed a relevancy objection. A sidebar discussion ensued,^[4]after which the court sustained the objection. Citing Evidence Code section 352, it found that the probative value of the proffered evidence was substantially outweighed by its prejudice: I think Ive allowed the impeachment. But other than that, I think under [section] 352, I think its probative value is substantially outweighed by the prejudice. It does seem to me just undue consumption of time and confusion issue. Were getting into these collateral things, the fact that he cant possess a weapon. [] I think the only thing youre possibly trying to say is that hes lying, but you have the ability to impeach him with other peoples statements in terms of whether or not hes lying. And the fact is he admitted that he had a machete all along, so I think hes put himself at risk in any event. Any time you have a weapon, you have a motive to lie because you dont want to be the one considered to be the aggressor.

Hill later admitted that in 2002 he had been convicted of misdemeanor burglary.

Defendant contends the trial court prejudicially erred, and also violated his rights under the state and federal Constitutions, by precluding him from cross-examining Hill regarding the specified probation condition. Citing article I, section 28, subdivision (d), of the California Constitution,^[5]and Evidence Code section 780,^[6]he maintains the trial court abused its discretion in excluding the evidence. He argues the excluded evidence was relevant to Hills credibility and to Hills bias and motive in describing the underlying events to the police. Asserting that he acted in self-defense when Hill, armed with a machete, confronted him, he maintains that his ability to present that defense was hampered by the trial courts ruling in that the jury was entitled to consider whether Hills purported reasons for owning a machete were skewed in a more passive, less aggressive light [than his] true reasons for owning it. Thus, he insists that if the jury knew the truth, it surely would have found that Hill was more aggressive that night than he claimed he had been, which in turn strengthened [defendants] claim of self-defense. Moreover, he contends that notwithstanding Hills admission that he owned the machete and had brought it to the confrontation, what Hill told the investigating officer as a reason for having the weapon fully impacted the credibility of his trial testimony.^[7] We cannot agree.

Article I, section 28, and Evidence Code section 780 read together mean, in essence, that all relevant evidence, including evidence of bias, is admissible except as limited by Evidence Code section 352. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 545 [evidence of bias during cross-examination subject to exclusion under Evidence Code section 352].) Evidence Code section 352 authorizes the trial court to exclude evidence offered for impeachment purposes if its probative value is substantially outweighed by the probability its admission will, among other things, necessitate an undue consumption of time. A trial court also has discretion to exclude impeachment evidence if it is collateral, cumulative, confusing, or misleading. (People v. Price (1991) 1 Cal.4th 324, 412.)

In determining whether evidence is substantially more prejudicial than probative, the trial court enjoys broad discretion. [T]he latitude [Evidence Code] 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. By expressly preserving this authority, [the Truth-in Evidence amendment to the Constitution] makes clear the voters determination to prevent such consequences. [] When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanoror any other conduct not amounting to a felonyis a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297, fn. omitted.)

We review a trial courts ruling under Evidence Code section 352 for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) A court abuses its discretion when it rules in an arbitrary, capricious, or patently absurd manner, resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Applying the foregoing principles, we conclude that the trial courts ruling was a proper exercise of its discretion. The key issue for the jury was whether defendant reasonably believed in his own need to defend himself against Hill and the machete. Hills reason for having the machete had nothing to do with his need to defend himself. Furthermore, whether or not Hill was permitted to possess the machete had no relevance to his reason for possessing it. Indeed, no matter why he possessed the machete or how he used it or intended to use it, he was in violation of a term of his probation and subject to the consequences. Consequently, he had no reason to lie to the police about why he had it in his possession; just having it was enough. As the trial court aptly observed, if Hill had denied using the machete, then the proffered evidence might have been admissible to show that Hill lied to the police because he knew that possessing it was in violation of his probation.

Moreover, as the People point out, had the jury been told about the probation condition it would have understood it as evidence that [Hill] was a violent, aggressive person who required such court-imposed conditions. This would not only have confused the issues, it would also have been unduly prejudicial. The probation condition was attached to a non-violent offense. The jury therefore would have received the false impression that Hill had committed violent acts in the past, and would have been encouraged to believe that since he had, he must have for that reason been the aggressor in the instant case.

Even if we were we to find that the trial court erred in denying defense counsel the opportunity to cross-examine Hill about his probation condition, the result would be the same. Reversal is only required when the erroneous exclusion of evidence causes a miscarriage of justice. (Evid. Code, 354.) Here, it was not reasonably probable that upon hearing evidence that Hill was prohibited from possessing a dangerous weapon, the jury would have reached a result more favorable to defendant. (People v. Earp (1999) 20 Cal.4th 826, 878.) The evidence would have added little if anything to the evidence already presented regarding Hills credibility. Indeed, Hills credibility had already been impeached by virtue of his convictions for felony embezzlement and misdemeanor burglary, to which he himself testified. Moreover, defense counsel had the opportunity to challenge Hills testimony and to argue that he was lying, which she did.

Nor is there merit to defendants contention he was deprived of his right to cross-examine Hill under the Sixth Amendment. The Sixth Amendment guarantees a defendant the right to be confronted with witnesses against him or her, which in turn includes the right to cross-examine adverse witnesses on matters reflecting on their credibility . . . . (People v. Quartermain (1997) 16 Cal.4th 600, 623.) However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Chatman (2006) 38 Cal.4th 344, 372.)

Here, as we have already said, Hills probation condition precluding him from possessing a dangerous weapon is irrelevant to a determination of whether he lied to the police about why he had a machete in his possession. Further, he was cross-examined by defense counsel with regard to his convictions, which itself served as impeaching evidence. We are therefore confident that an inquiry into the nature of the probation condition was not reasonably likely to have produced a significantly different impression of Hills credibility. (People v. Belmontes (1988) 45 Cal.3d 744, 780-781.)

Even if we were to find constitutional error, it would be harmless beyond a reasonable doubt. Improperly denying a defendant the opportunity to cross-examine an adverse witness on matters reflecting on the witnesss credibility is subject to the Chapman^[8]harmless error standard. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)

The prejudicial effect of improperly restricting cross-examination depends on a multitude of factors, including the cumulative nature of the lost information, the extent of cross-examination otherwise permitted, the degree of evidence corroborating the witness, and the overall strength of the prosecution case. [Citation.] (People v. Rodriguez (1986) 42 Cal.3d 730, 751.) On the record before us, any error in precluding cross-examination with regard to Hills probation condition would not require reversal. (Chapman, supra, 386 U.S. at p. 24.) The jury already knew that Hill had been convicted of an offense of moral turpitude, that he had a machete in his possession, that he was willing to use the machete as a weapon, and that he had it with him when he confronted defendant. Thus, we fail to see how knowing that Hill was precluded from possessing the machete would have altered the jurys impression of him or have affected the manner in which it viewed Hills testimony.

Nor are we persuaded by defendants contention that exclusion of this evidence cannot be deemed harmless in that the jury asked for a readback of the instructions on self-defense. He cites case law recognizing that a request for a readback is one indicia of a close case (People v. Williams (1971) 22 Cal.App.3dd 34, 38-40) and that a jurys request for clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) While it is true that a critical issue for the jury was whether defendant acted in self-defense, the fact that the jury requested clarification of the instructions on that issue does not alter the reality that, for reasons already stated, the probation condition was simply irrelevant.

B. The trial court exceeded its jurisdiction in ordering restitution for a loss caused by criminal conduct for which defendant was not convicted.

During sentencing, the trial court ordered defendant to pay restitution pursuant to Penal Code section 1202.4 to the victim Raymond Hill, and to the other victims in this case. In doing so, the court observed [i]ts interesting, probation report just said the one victim, but the other person was punched also. Presumably, the courts reference to the other person was to Frederick Taylor.

Defendant maintains that, because he was not convicted of any crime of which Taylor was a victim, no award of restitution can lawfully be made in Taylors favor. He is correct.

Section 1202.4, subdivision (a)(1) states: It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. Pursuant to subdivision (f) of section 1202.4, in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

We first reject the Peoples contention defendant forfeited this issue by failing to object below. As articulated in People v. Scott (1994) 9 Cal.4th 331, the unauthorized sentence concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citation.] (Id. at p. 354.) The same rationale applies where, as here, a defendant is complaining that the court lacked the authority to make a particular order for restitution. Indeed, under circumstances where the claimed error is clear and correctable independent of any factual issues, it is not inappropriate for an appellate court to intervene in the first instance. (Ibid.) Thus, because the Peoples position the order was authorized is, as it turns out, incorrect, the issue is properly before us.

Nor is there merit to the Peoples position that restitution is proper even where the loss to the victim is caused by related conduct not resulting in a conviction. Citing People v. Carbajal (1995) 10 Cal.4th 1114, 1122 (Carbajal), the People maintain the trial court was empowered to award restitution to Taylor even though he was not named as the victim of any offense with which [defendant] was charged. Their reliance on Carbajal is misplaced.

Carbajal involved restitution as a condition ofprobation. In upholding the condition, the Supreme Court concluded nothing in Proposition 8 or in Penal Code section 1203.04 purports to limit or abrogate the trial courts discretion, under Penal Code section 1203.1, to order restitution as a condition of probation where the victims loss was not the result of the crime underlying the defendants conviction, but where the trial court finds such restitution will serve one of the purposes set out in Penal Code section 1203.1, subdivision (j). [Citation.] (Carbajal, supra, 10 Cal.4th at p. 1122.)

As articulated in People v. Lai (2006) 138 Cal.App.4th 1227: Carbajal summarizes the long-standing rule: California courts have long interpreted the trial courts discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]. [Citation.] [] But the rule governing probation does not apply to a state prison sentence. (Id. at pp 1247-1248.)

And so it is here. Probation was denied and defendant was sentenced to state prison. Thus, because its order of restitution purportedly in favor of Taylor was for a loss caused by conduct which did not result in a conviction, the trial court erred.

C. We concur with decisional law holding that the involuntary collection of blood from prisoners for DNA sampling does not violate those prisoners rights under the Fourth Amendment.

At the time of sentencing, the trial court ordered defendant to submit to the involuntary collection of his biological samples so that his DNA profile could be analyzed and included in the states DNA database. The order was made pursuant to section 296, subdivision (a)(1), which provides that biological samples are required to be taken from [a]ny person . . . who is convicted of . . . any felony offense.

Defendant contends the order violated his rights under the Fourth Amendment of the United States Constitution and an invasion of privacy under article I, section 13 of the California Constitution. He essentially concedes that his position is contrary to every published decision on this issue in this state. Nonetheless, he argues that because this court has not yet addressed the issue in a published opinion, it is critical that [we] provide guidance on whether the authority once provided by People v. King [(2000) 82 Cal.App.4th 1363] survives constitutional scrutiny under the Fourth Amendment, in light of the reaffirmation of the special needs doctrine in Edmond [City of Indianapolis v. Edmond (2000) 531 U.S. 32] and Ferguson [Ferguson v. City of Charleston (2001) 532 U.S. 67]. We decline the invitation.^[9]

We agree with the Peoples position that defendant forfeited his claim by failing to object below and that even if there was no forfeiture, the relief sought is not cognizable in that the Department of Justice was not a party to the criminal trial nor is it a party to this appeal and has not had an opportunity to protect its interests. In any event, we reject the claim on its merits because the Act is not unconstitutional.

California appellate courts have consistently rejected the position advocated on defendants behalf. (People v. Travis (2006) 139 Cal.App.4th 1271, 1281-1290 (Travis); People v. Johnson (2006) 139 Cal.App.4th 1135, 1157-1168; Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 817-824; People v. Adams (2004) 115 Cal.App.4th 243, 255-259; People v. King, supra, 82 Cal.App.4th at pp. 1371-1378.) Moreover, neither Edmond nor Ferguson involved the privacy expectations of convicted felons; rather, they involved suspicionless searches on free persons. (See Travis, supra, 139 Cal.App.4th at p. 1287, fn. 6 [discussing and distinguishing Edmond and Ferguson ].) Furthermore, any argument that Fourth Amendment privacy interests do not prohibit gathering information concerning identity from the person of one who has been convicted of a serious crime, or of retaining that information for crime enforcement purposes, is an argument that long ago was resolved in favor of the government. (Travis, supra, at p. 1284, quoting from People v. King, supra, 82 Cal.App.4th at p. 1375.) Nor did the courts sentencing order violate defendants broader rights to privacy under the California Constitution. (Travis, supra, at p. 1287.)

DISPOSITION

The trial court is directed to strike its order requiring defendant to pay restitution in favor of Frederick Taylor and/or any other individual who was not a victim of a crime for which defendant was convicted. The trial court is further directed to amend the abstract of judgment so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections. ( 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] Defendant, who had apparently been romantically involved with Huntley, had given Huntley the dog, a Chihuahua, as a gift, and defendant sometimes took care of the dog. Huntley was also romantic with Taylor; they were real good friends, were drinking buddies, and were hanging out a lot.

^[3] Hill later recalled that earlier the same day he had noticed defendant throwing rocks at a window near Taylors bedroom. Defendant seemed agitated, and it was Hills impression that defendant wanted Taylor to come out and fight. Hill did not hear Taylor respond, although he believed that Taylor was home. Defendant seemed to get more and more agitated as the time passed.

^[4] At sidebar, the court remarked: Embezzlement conviction in 2004 is fine. The fact that his probation terms [] prohibit him to possess a deadly weapon, it has nothing to do with whether or not its self-defense, and whether hes defending another. Its just I dont see it.

[DEFENSE COUNSEL]: It goes to his bias his motive in telling the officers what he told them.

[PROSECUTOR]: He told the officers that he had the machete. If it goes to his bias, he would have lied about it.

[DEFENSE COUNSEL]: But there was nothing said to the officers about being afraid for [Aronson] or afraid for [Mrs. Hill] or concerned about their safety or anything like that.

[PROSECUTOR]: What does it have to do with the machete?

THE COURT: He told the officers he had the machete, apparently. Im allowing impeachment of the fact that he has a felony, because its a crime of moral turpitude involving embezzlement. . . .[] Its an appropriate means of impeachment without getting into his probation terms. The fact that he has a knife, and his probation terms, does not change the fact that hes testified that he was afraid for her because the defendant made some statement to the effect of You bitches, youre not going to make the call. [] He has the machete, they know he has it, they know hes been convicted of a felony. The fact hes prohibited from having it doesnt go to the defendants guilt in any way; it doesnt go to innocence in any way. It doesnt gothis witness is allowed to be impeached with a felony. Hes not denied that he had it. . . . [] If he denied that he had it, then that would be an appropriate grounds for impeachment if in fact he had it first. Because he obviously would be lying. Hes not even denying it. [] Were getting very extraneous in terms of probation.

[DEFENSE COUNSEL]: I understand, Your Honor. Just for the record, it was as to his motive for fabricating about being concerned for [Aronson] and for [Mrs. Hill].

THE COURT: The fact that hes on probation?

[DEFENSE COUNSEL]: That never came up before, the fact that he has an interest, a penal interest at stake.

THE COURT: Doesnt he have a penal interest, just by coming out with a machete, at stake?

[DEFENSE COUNSEL]: Well . . . [] . . . [] . . . hes fabricating the part about [Aronson], being concerned for her safety.

^[5] California Constitution, article I, section 28, subdivision (d), provides, in part, that relevant evidence shall not be excluded in any criminal proceeding . . . . Nothing in this section shall affect any existing statutory rule of evidence relating to . . . Evidence Code, [s]ection[] 352.

^[6] Pursuant to Evidence Code section 780, the jury may, in determining a witnesss credibility, consider any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to . . . [] (f) The existence or nonexistence of a bias, interest, or other motive.

^[7] Defendant acknowledges that Hill admitted to owning the machete and also that he took it with him when he left the trailer. Defendant also acknowledges that Hill briefly mentioned that his alternate use for the machete was for a weapon. However, he maintains that Hill down played that and tried to make it sound as though he would only use the machete in self-defense, and then only if someone broke into his home.

^[8]Chapman v. California(1967) 386 U.S. 18 (Chapman).

^[9] Alternatively, defendant informs us that, as neither the California Supreme Court nor the United States Supreme Court has yet passed on this issue, [he is raising] the argument to preserve it for further review, notwithstanding the line of published California authority rejecting it.