P. v. Gordon

Filed 7/26/07 P. v. Gordon CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur M. Lew, Judge. Affirmed.

________

Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_________

Defendant Regina Latrice Gordon appeals from a judgment of conviction following a jury trial in which she was found guilty of assault with a deadly weapon and vandalism. She raises a single issue on appeal: Did the trial court err in excluding evidence of the victims violent character offered to support Gordons contention she stabbed the victim in self-defense during a brawl the victim initiated? We conclude that even if the court erred in excluding the evidence Gordon has failed to show prejudice. Therefore, we affirm the judgment.

FACTS AND PROCEEDINGS BELOW

The following facts are undisputed.

On the day of the alleged assault Gordon and the victim, Debra Hooper, worked at the Compton Airport. Hooper was an employee; Gordon was there performing community service as a sentence for a traffic violation. Gordons supervisor terminated her from the program following a dispute between Gordon and Hooper over Gordons alleged forgery on a time card showing her hours of service.

As Gordon walked to her car in the parking lot, she saw Hoopers car and slashed two of its tires with a steak knife. Some children saw Gordon do this and ran to tell Hooper. Hooper confronted Gordon as Gordon was preparing to get into her car and leave.

At this point, Hoopers and Gordons versions of events diverge.

Hooper testified she walked up to Gordon and, standing approximately two feet away, asked Gordon why she had slashed her tires. Hooper did not initiate any physical attack on Gordon. Suddenly Hooper felt a poke on the right side of her body as if she was being stabbed with something. In response, Hooper hit Gordon in the face with her right fist and punched her repeatedly. Hooper then hit Gordon over the head with a gallon bottle of household cleaner she had been holding in her left hand.

Gordon testified Hooper came up to her in the parking lot as she stood by her car looking for her keys. Hooper said: You slashed my tires. Im going to F you up. Hooper struck Gordon in her left eye knocking out her contact lens then hit her several more times. Gordon could not see well, did not know where her car keys were and believed from the way Hooper was pounding her that her life was in danger. As Gordon swung her hands to try to block Hoopers blows she cut Hooper with the steak knife.

To bolster her version of how the brawl began Gordon sought to introduce evidence of Hoopers violent character based on an altercation involving Hooper and another woman which occurred five years earlier. As discussed more fully below the trial court refused to admit this evidence.

A jury convicted Gordon of one count of assault with a deadly weapon and one count of vandalism. The trial court sentenced her to the low term of two years on the assault and a concurrent six-month term on the vandalism. Gordon filed a timely appeal.

DISCUSSION

Evidence Code section 1103, subdivision (a), authorizes the defendant in a criminal case to offer evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted[.] Thus, in a prosecution for assault where self-defense is raised, evidence of the violent character of the victim is admissible to show the victim was the aggressor. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) The trial court, however, has discretion to exclude such evidence under Evidence Code section 352 if its probative value is outweighed by the substantial danger of undue prejudice or of confusing the jury or of consuming an undue amount of time. (People v. Wright (1985) 39 Cal.3d 576, 587.)

Gordon sought to introduce evidence of Hoopers violent character based on an earlier incident involving Hooper and another woman. It is not clear from the record why the trial court excluded this evidence. After hearing argument on the issue, the court stated: [E]ven . . . if you assume that Debra Hooper struck [the first blow], it doesnt justify the use of a knife in this case. [] So I think, you know -- Ive indicated 352 based on counsels representations. Now that Ive heard the Peoples case, Im not sure that it even gets to 352. Its just totally irrelevant at this point. This explanation suggests the court believed the evidence was irrelevant either because if Hooper struck the first blow Gordon was not justified in retaliating with a knife or because Gordon had not yet put on her evidence of self-defense, or because of considerations under Evidence Code section 352.

We need not decide whether the trial court erred in excluding the evidence of Hoopers character because, even if the court erred, the record does not permit a finding of prejudice to Gordon.

In order to obtain appellate review of an evidentiary ruling excluding evidence, the proponent of the evidence must make an offer of proof on the record regarding the anticipated testimony. (People v. Carlin (2007) 150 Cal.App.4th 322, 334.) Gordon made no such offer here.

Gordon sought to produce evidence of Hoopers violent character based on information contained in the police report of an incident which occurred five years earlier. In order to find prejudice we would have to conclude it is reasonably probable that if this information had been presented to the jury Gordon would have obtained a more favorable result. (People v. Gurule (2002) 28 Cal.4th 557, 624.) Because Gordon did not seek to admit or mark the police report nor summarize its contents as part of the trial record, we cannot judge its evidentiary value. The record contains only a brief comment by Gordons counsel who stated the report shows Hooper comes barging in and punches this woman. Without any context for this alleged conduct by Hooper, we cannot say it is evidence Hooper has a violent character much less that there is a reasonable probability such evidence would have effected the outcome of the trial in Gordons favor.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.^*

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)